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HomeMy WebLinkAbout15 - Newport Beach Brewing CompanyCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item 15 March 27, 2007 TO: Honorable Mayor and Members of the City Council FROM: James Campbell, Senior Planner (949) 644 -3210, icamobell (c�citv.newport- beach.ca.us SUBJECT: Newport Beach Brewing Company, Review of Use Permit No. 3485 2920 Newport Boulevard (PA2006 -177) The City began the review of the Newport Beach Brewing Company's use permit last year due to complaints received from `The Cannery Village Concerned," a group of residents, business owners and property owners. They alleged that the Brewing Company was violating the conditions of their use permit. A complete discussion of the issues and complaints are contained in the attached Planning Commission reports. The Planning Commission, after three meetings, found the Brewing Company to be operating contrary to the findings for approval of the use permit and modified the conditions of approval to address the concerns of the neighborhood. Operational and physical improvements were required and the Brewing Company agreed to the changes in the conditions of approval. An appeal was filed by The Cannery Village Concerned contending that the Commission "failed to take responsibility for the enforcement of the California Coastal Commission permit, and make the restaurant conform to their use permit as such and not as a bar." RECOMMENDATION 1) Hold a public hearing, deny the appeal and uphold the decision of the Planning Commission to modify Use Permit No. 3485 by adopting the attached draft resolution (Exhibit No. 1). 2) Set aside the potential modification of Condition #6 to be consistent with CCC Special Condition #1 be set aside until a parking study is completed. BACKGROUND • In 1993, Use Permit No. 3485 was granted to operate a "restaurant/brewpub" with a beer and wine license. • In 1999, an amendment of the use permit was granted allowing distilled spirits at the establishment. • In January 2005, the City received complaints of alleged violations of the conditions and objectionable late night behavior by patrons. Newport Beach Brewing Company March 27, 2007 Page 2 of 6 • On May 4, 2006, the Planning Commission discussed the operation, took input from the neighborhood and directed an official review of the use permit. • On August 17, 2006, the Planning Commission conducted a noticed public hearing where additional testimony was heard and a future hearing was set to consider the possible revocation of the use permit. • On January 4, 2007, the Planning Commission held a second, noticed public hearing where the Commission acted to amend the conditions of approval. • On January 12, 2007, an appeal was filed by The Cannery Village Concerned. The appeal is attached as Exhibit No. 8 and two letters were submitted on March 5, 2007 by Bruce Low, who resides at 411 29th Street adjacent to the Brewing Company's parking lot, in support of the appeal (Exhibits 9 & 10). The following major issues were considered by the Planning Commission, are referenced in the appeal and letters from Mr. Low, and necessitate attention by the City Council: 1) Is the Newport Beach Brewing Company operating to the detriment of the neighborhood and do the revised conditions of approval address nuisances? Neighbors contend that the Newport Beach Brewing Company is violating its use permit and that the operators are not sufficiently controlling patron behavior, which creates nuisances during the late evening and early morning hours. Alleged violations include operating a bar rather than a restaurant, opening the entire dining area on weekends before 5PM, trash in the parking lot and unruly patron behavior outside the establishment. The primary complaint from neighbors is that patrons create noise, cause property damage, urinate, defecate, and conduct sexual activities, etc., during the late evening and early morning hours, to the detriment of the neighborhood. The Planning Commission considered all of the issues and concluded that violations of the use permit did occur in the past. However, the Commission found that violations were abated prior to Commission action in January of 2007 because the Brewing Company made the following physical and operational changes to alleviate neighborhood complaints. • Construction of a trash enclosure cover (building permit under review). • Employee training on responsible alcohol sales has been completed. • Relocated the entrance from the parking lot side of the building to the Newport Boulevard entrance when a line of patrons forms to enter the establishment. • Discontinued the removal of condiments and menus from the tables. • Discontinued the late night bar menu while keeping the kitchen open at all times with a full menu. • Installed signs requesting that patrons be respectful of the neighborhood. • Instituted regular security sweeps of the parking lot. • Maintain a security presence at least'' /2 hour after closing. • Instituted a recycling collection program that minimizes noise generation. • Scheduling maintenance activities outside of sensitive hours. Newport Beach Brewing Company March 27, 2007 Page 3 of 6 Relocation of the entrance from the parking lot side of the building to the Newport Boulevard side when a line forms was one of the most significant changes made. The Planning Commission incorporated this change as part of the modified conditions of approval (Condition #19). This measure has been beneficial in alleviating noise from patrons waiting to enter the establishment. The appellant suggests that the relocation of the entrance occur at a specific time rather than when a line forms so customers become conditioned to use the street side entrance in the evening. The appellant would prefer that patrons be prohibited from using the building doors leading to the parking lot as an exit in the late evening or early morning, as patrons tend to disturb residents. Setting a specific time for the entrance shift might have a beneficial effect with regular customers avoiding the parking lot after the specified time. Prohibiting the use of the building doors leading to and from the parking lot as a regular exit might have a beneficial effect with patrons who do not need to retrieve parked vehicles from the parking lot. Other patrons would need to walk around the building to get to their vehicles. The only guaranteed benefit would be the elimination of interior noise that escapes when the doors are opened; however, this has not been a complaint in the past. In addition to the changes already implemented by the Brewing Company, the preparation of a detailed security operations plan and its implementation was required by the Planning Commission in their action in January 2007 (Condition #22). The plan is required to be prepared within 45 days of the approval of the amendment and it will be subject to the review and approval by the Police Department and Planning Director. The plan has not been submitted to date, pending the outcome of the appeal. At the moment, Brewing Company staff conducts a sweep of the exterior of the site and parking lot approximately every 15 minutes. Security personnel also remain '% hour past closing. The appellant would like to see a security guard posted in the parking lot when needed to act as a continuous deterrent. This change can be mandated through the review and approval of the security operations plan or a specific condition of approval. A posted security guard could prove more effective than periodic sweeps of the grounds. The Planning Commission modified the conditions of approval to incorporate these physical and operational changes and the Brewing Company agreed to the changes in conditions. The Commission considered but did not reduce the hours of operation because they believed that the other changes made would alleviate complaints. The Planning Commission scheduled a review hearing before the end of October 2007 (Condition #27) to evaluate the effectiveness of the modified conditions and the Brewing Company's ability to control patrons. If the City Council believes that the changes in the conditions made by the Planning Commission are not sufficient to eliminate detrimental conditions in the neighborhood, the closing hour may be changed. An 11 PM closing hour would eliminate late -night or early morning problems attributable to the operation. The neighborhood benefit achieved through a reduction in the operating hours would need to be balanced against the rights of the Brewing Company to continue to operate as they have for years and the potential loss to business. The Brewing Company would lose revenue and they have indicated to staff that the reduction in hours could force them out of business. It should be noted that reducing the hours of operation will not alleviate all late -night problems experienced by residents. Other restaurants and bars in the immediate area have later hours of operation and the Brewing Company's parking lot and the adjacent municipal parking lot are used by patrons of those establishments. Newport Beach Brewing Company March 27, 2007 Page 4 of 6 2) Is the Brewing Company operating a bar contrary to the original use permit? The City permitted a "restaurant/brewpub" with a closing hour of 2AM on Friday and Saturday, 11 PM on other days. In 1999, when the use permit was amended to allow the sale and on -site consumption of distilled spirits, the closing hour on Friday and Saturday was changed to 1AM with no change to the 11 PM closing hour on other days. Food service was stressed in the original approval of the use permit in 1993 and with the approval of the amendment in 1999. The brewing, sales and service of alcohol was characterized by the applicant as accessory to food service; a convenience or amenity as a way to complement food sales. Testimony at the Planning Commission hearings indicated that the use takes on a "bar -like" character especially on Thursday, Friday and Saturday nights. A limited late night menu had been offered rather than the full menu, a line of patrons attempting to enter the establishment forms in the parking lot, security personnel are employed, more alcohol is served than food based on sales, identification is checked and people under 21 are routinely refused entry. The use permit issued in 1993 included a condition that "The operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant." In 1999, the City added a condition that "The approval of this use permit is for a restaurant/brewpub and shall not be construed as the approval of a bar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service hours (food products sold or served incidentally to the sale or service of alcoholic beverages shall not be deemed as constituting regular meal service) nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and /or dancing." These two conditions were intended to maintain the primary use and character of a restaurant and brewpub. The appellant contends that the Brewing Company violates these conditions when alcohol sales are higher than food sales. The Commission considered this issue and concluded that the use was operating as a restaurant and brewpub when the practice of having a limited late -night food menu was eliminated. The Commission modified the conditions to require the kitchen to remain open with a full menu at all times. Additionally, the Commission required food sales to be more than alcohol sales based upon quarterly gross sales. If the City Council believes that additional measures are needed for operation of the Newport Beach Brewing Company consistent with the approval of a restaurant/brewpub and the character directed by the conditions of the use permit, a change in the closing hour may also be considered to resolve this issue. 3) Parking before 5PM on Saturday and Sunday This issue relates to differences between Condition #6 of Use Permit No. 3485 and Special Condition #1 of Coastal Development Permit No. 5 -93 -137. The peace and quiet of the neighborhood during the late evening or early moming hours is not directly tied to this issue. Newport Beach Brewing Company March 27, 2007 Page 5 of 6 The appellant believes that Condition #6 is inaccurate and inconsistent with Special Condition #1 and should be modified to make it consistent. The Brewing Company presently opens the entire dining room on weekends prior to 5PM consistent with Condition #6 and in violation of Special Condition #1. The Planning Commission considered this issue as summarized below and made no change to Condition #6. Condition #6 limits the amount of net public area (1,500 sq. ft.) that can be utilized prior to 5PM, Monday through Friday. This condition was imposed by the City in mid -1993 as the site does not provide all of the code - required parking and the restriction would avoid negatively impacting public parking supply in the adjacent municipal lot before 5PM. After local approval of the use permit, the Brewing Company sought the approval of a Coastal Development Permit (CDP) from the California Coastal Commission (CCC) for the project. Special Condition #1 of CDP 5 -93 -137 has a similar limitation of the net public area before 5PM, but it applies 7 days a week, not just weekdays. The CCC also requested assurance that the City would enforce the net public area limitation. The CCC required the City to modify its prior approval to be consistent with the conditions imposed through the approval of the CDP. In September 1993, the City Council approved changes to the conditions of approval to make them consistent with the CDP; however, the record reflects that the City Council did not change Condition #6 to apply 7 days a week. All other changes necessary to comply with the action of the CCC were made. In a letter to the California Coastal Commission shortly after the City Council hearing, James Hewicker, the Planning Director at that time, indicated that the City would enforce Condition #6 that is applicable only Monday through Friday. California Coastal Commission staff was contacted about the discrepancy between the conditions and they indicate that Special Condition #1 is applicable and applies 7 days a week. Additionally, CCC staff indicated that the Brewing Company could request a modification of the Special Condition #1 from the CCC provided that it would not negatively impact public parking. The appellant indicates that there is a parking problem in the area and the Brewing Company contributes to it by opening the entire dining area in excess of 1,500 square feet contrary to Special Condition #1. The Planning Commission did not amend Condition #6 to be consistent with Special Condition #1 of the CDP based upon the Planning Director's prior correspondence and , as well as a lack of compelling evidence to indicate that there is a parking problem on Saturday and Sunday before 513M. The City Council may conclude that an error was made and can amend Condition #6 to be consistent with Special Condition #1. However, the magnitude of the parking issue before 513M on Saturday and Sunday has not been documented. Staff recommends the preparation of a parking survey to determine the magnitude of the parking issue before changing Condition #6. Such a survey would need to be conducted during the summer months. The survey would be the basis for a request to the CCC to change, or eliminate, the condition if no public parking shortage is identified. Newport Beach Brewing Company March 27, 2007 Page 6 of 6 SUMMARY The appeal and the letters submitted by Mr. Low do not present any new information that was not considered by the Planning Commission. The City Council needs to determine whether or not the revised conditions adopted by the Planning Commission sufficiently address neighborhood complaints. Secondly, the Council will need to determine whether or not current operating character of the Newport Beach Brewing Company is consistent with the original intent of to allow a restaurant/brewpub. ALTERNATIVES 1) Overturn the decision of the Planning Commission and set a hearing to consider revocation of the use permit at a future date. 2) Further amend the conditions of approval by limiting the hours of operation or requiring other changes to the conditions of approval. PUBLIC NOTICE The Newport Beach Brewing Company and the appellant have been notified of this hearing. A hearing notice indicating the subject, time, place and location of this hearing was duly provided in accordance with the Municipal Code. Notice was published in the Daily Pilot, mailed to property owners within 300 feet of the property (excluding abutting roads) and the site was posted a minimum of 10 days in advance of this hearing. Prepared by: Submitted by: �) rol'� " mes Camp ell, Senio Planner ATTACHMENTS David Lepo, Director 1. Draft Council resolution affirming the action of the Planning Commission 2. Planning Commission staff report dated January 4, 2007 (with attachments noted) 3. Minutes from January 4, 2007 4. Planning Commission staff report dated August 17, 2006 (with attachments noted; 5. Minutes from August 17, 2006 6. Additional materials submitted to the Planning Commission for consideration 7. Planning Commission Resolution No. 1709 8. Appeal dated January 12, 2007 9. Letter from Bruce Low dated February 28, 2007 10. Letter from Bruce Low dated March 2, 2007 Item 1 Draft Council resolution affirming the action of the Planning Commission Bc,4NK BANK RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH MODIFYING THE CONDITIONS OF APPROVAL OF USE PERMIT NO. 3485 FOR PROPERTY LOCATED AT 2920 NEWPORT BOULEVARD (PA2006 -177). WHEREAS, In 1993, the City approved Use Permit No. 3485 subject to findings and conditions of approval authorizing a restaurant/brewpub with a Type 23 Alcoholic Beverage Control (ABC) license to operate at 2920 Newport Boulevard within the Cannery Village area. The restaurant and brewpub began operations under in 1994 using the fictitious business name - Newport Beach Brewing Company; and, WHEREAS, In 1999, the operator of the establishment requested and received approval of an amendment to Use Permit No. 3485. The amendment allowed the restaurant/brewpub to operate with a Type 75 ABC license and the amendment was subject to findings and revised conditions of approval; and, WHEREAS, In January of 2006, the City of Newport Beach received complaints from neighbors alleging that the Newport Beach Brewing Company was violating the conditions of Use Permit No. 3485. Alleged violations included, among other things: operating a bar rather than a restaurant in violation of Condition No. 10; alcohol sales and service in excess of food sales in violation of Condition No. 9; opening the entire dining area on weekends before 5PM in violation Condition No. 6 and in violation of Coastal Development Permit No. 5 -93 -137, trash in the parking lot in violation of Standard Condition E; failure of the establishment to curb unruly patron behavior outside the establishment in violation of Standard Condition D; and inadequate training of the owner and employees in responsible methods and skills for serving and selling alcoholic beverages in accordance with Standard Condition F. Neighbors contend that patrons create noise, cause property damage, urinate, defecate, and conduct sexual activities during the late evening and early morning hours and that the operator was unable or unwilling to discourage or correct these objectionable conditions. Based upon the complaints received, Use Permit No. 3485 was referred to the Planning Commission on May 4, 2006 for review; and, WHEREAS, On May 4, 2006, the Planning Commission discussed the matter and testimony from neighbors of the establishment and the operators of the Newport Beach Brewing Company was considered.. The Commission also considered a report prepared by staff outlining the complaints and discussing potential violations of the conditions of approval. The following facts were identified: • Patrons line up outside the premises to enter the establishment typically Thursdays through Saturday during the late evening or early morning hours. This congregation of patrons created objectionable conditions to nearby residential neighbors and the operator of the use (Newport Beach Brewing Company) did not take all reasonable steps to discourage said objectionable conditions as required pursuant to Standard Condition D. 11 Resolution No. Page 2 of 7 • The operator of the restaurant/brewpub uses security to control occupancy and patrons and minors are excluded from entry during the late evening and early morning hours indicative that the operator of the use was operating the use like a bar rather than a restaurant and brewpub. • The operator implemented a limited "late night' menu and food sales were either discouraged or non - existent or the kitchen was closed before the establishment was closed indicative that the operator of the use was operating the use like a bar rather than a restaurant and brewpub. • The operator of the use indicated that alcohol sales exceed food sales most of the time and that alcohol sales are approximately 90% of sales during the late evening and early morning hours. This high percentage of alcohol sales would not constitute ancillary alcohol sales to food sales in violation of Condition No. 9. • The net public area of the establishment is no more than 1500 square feet Monday through Friday before 5PM and the net public area exceeds 1500 square feet before 5PM on Saturday and Sunday in violation of Condition No. 6. • Owners, managers and employees of the Brewing Company had not undergone a certified training program in responsible methods and skills for serving and selling alcoholic beverages in accordance with Standard Condition F. • The site was found to be generally free of litter and not in violation of Standard Condition E. At the conclusion of the discussion, the Planning Commission determined that there was sufficient information to indicate that the use was operating in violation of the conditions of approval and in a manner that was detrimental to the neighborhood. Additionally, the Commission found that there was sufficient information to warrant consideration of modifying the conditions of approval as changes to the conditions could potentially alleviate the problems reported by neighbors. The Commission directed staff to place the matter on a future agenda for possible action; and, WHEREAS, On August 17, 2006, the Planning Commission held a public hearing regarding the alleged violations of and potential modifications to the conditions of approval of Use Permit No. 3485. The hearing was noticed in accordance with Chapter 20.92 of the Municipal Code and the operator of the Newport Beach Brewing Company was also mailed a notice of the hearing; and, WHEREAS, During the August 17, 2006 hearing, testimony and information presented to the Commission confirmed past violations of the conditions of approval. Testimony was again taken that further supported a determination that the use was operating detrimental to the community. At the conclusion of the hearing, the Planning Commission directed staff to set Use Permit No. 3485 for possible modification and /or revocation; and, WHEREAS, On January 4, 2007, the Planning Commission held a noticed public hearing on the possible modification of conditions and /or revocation of Use Permit No. 3485. Testimony and a staff report, including a report prepared by the Newport Beach Police Department, were considered by the Planning Commission. Testimony was again taken that further supported a determination that the use was operating Resolution No. Page 3 of 7 detrimental to the community; however, the Newport Beach Brewing Company had instituted operational changes leading to a reduction of nuisances. At the conclusion of the public hearing, the Planning Commission adopted Resolution No. 1709 amending Use Permit No. 3485 by modifying the conditions of approval. WHEREAS, On January 12, 2007, The Cannery Village Concerned, a neighborhood group, filed an appeal of the Planning Commission's action in accordance with Chapter 20.95 (Appeals) of the Municipal Code. WHEREAS, On March 27, 2007, the City Council held a noticed public hearing on the appeal and the possible modification of conditions and /or revocation of Use Permit No. 3485. Testimony and information presented to the Council confirmed past violations of the conditions of approval and a determination that the use was operating detrimental to the community. WHEREAS, changes to the conditions of approval are necessary to memorialize the physical and operational changes instituted voluntarily by the operator to alleviate negative impacts and nuisances experienced by neighbors. Additionally, changes to the conditions of approval are necessary to clarify the meaning and intent of the conditions. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Newport Beach does hereby approve an amendment of Use Permit No. 3485 subject to the modified conditions of approval attached as Exhibit "A ". This resolution shall take effect immediately upon adoption. Passed and adopted by the City Council of Newport Beach at a regular meeting held on the March 27, 2007 by the following vote to wit: AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT, COUNCIL MEMBERS ATTEST: CITY CLERK MAYOR Resolution No. EXHIBIT A Conditions of Approval Use Permit No. 3485 Page 4 of 7 CONDITIONS: 1. The proposed development shall be in substantial conformance with the approved site plan, floor plan and elevations, except as noted below. 2. Deleted 3. The applicant shall provide a minimum of one parking space for each 50 square feet of net public area before 5:00 p.m. and one parking space for each 40 square feet of net public area after 5:00 p.m. in conjunction with the restauranUbrewpub. 4. Deleted 5. The property owner shall pay for 29 in -lieu parking spaces in the Cannery Village Municipal Parking Lot on an annual basis for the nighttime operation (after 5:00 p.m.) of the restauranUbrewpub use as agreed upon by the Sales Agreement between the City of Newport Beach and the property owner. 6. The net public area of the restauranUbrewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 p.m.) shall be limited to 1,500 square feet. The balance of the net public area shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m.. 7. The hours of operation for the restauranUbrewpub shall be limited to the hours between 6:00 a.m. and 11:00 p.m. Sunday through Thursday and between 6:00 a.m. and 1:00 a.m. on Friday and Saturday. 8. All employees shall park either in the privately owned off -site parking area or in one of the municipal parking lots in the area. 9. The operation of the brewery and the service of alcoholic beverages shall be ancillary to the food service operation of the restaurant (e.g. the brewery and the service of alcoholic beverages may not be conducted without the concurrent operation of the restaurant during all hours the use is open for business). The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The operator shall at all times maintain records which reflect separately the gross sales of food and the gross sales of alcoholic beverages. Said records shall be kept no less frequently that on a quarterly basis and shall be made available to the Planning Director upon request in j2. Resolution No. Page 5 of 7 conjunction with the Planning Commission's review of this Use Permit for alleged violations of conditions. 10. The principal use authorized by this Use Permit is a restaurant/brewpub. The accessory operation of a bar is permitted provided that the kitchen remains open for the service of meals and that a full menu is provided. This Use Permit shall not be construed as the approval of a bar, cocktail lounge, or other use with the principal purpose of serving alcoholic beverages during hours not corresponding to regular meal service hours nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and /or dancing. The kitchen of the restaurant/brewpub shall be in operation to serve meals at all times that the business is open. A full meal menu (including the service of those meals ordered) shall be made available. Menus and condiments shall be available at the tables at all times. 11. No outdoor loudspeakers or paging system shall be permitted in conjunction with the proposed location. 12. A washout area for refuse containers shall be provided in such a way as to allow direct drainage into the sewer system and not into the Bay or storm drains, unless otherwise approved by the Building Department. 13. Kitchen exhaust fans shall be designed to control smoke and odor to the satisfaction of the Building Department. 14. All mechanical equipment and trash areas shall be screened from surrounding public streets and alleys and adjoining properties. The existing trash enclosure shall be covered and the doors or gates to the enclosure shall be modified to be self - closing and self - locking for security. 15. Deleted 16. Should prerecorded music be played within the restaurant facility, such music shall be confined to the interior of the building, and all doors and windows shall be kept closed while such music is played. 17. A special events permit is required for any event or promotional activity outside the normal operational characteristics of this restaurant business that would attract large crowds, involve the sale of alcoholic beverages, include any form of on -site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. 18. Should this business be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing company. 19. The parking lot entrance to the building shall not be used as an entrance when a line of patrons seeking entrance to the establishment forms. 13 Resolution No. rage ti of i 20. The operator shall discourage loitering on site at all times the establishment is open or employees or owners are present. 21. The operator shall conspicuously post and maintain signs indicating to patrons to be courteous to residential neighbors while outside the establishment. 22. The applicant shall prepare a detailed security operations and property maintenance plan within 45 days of approval of this amendment to the Use Permit. The plan shall be subject to the review and approval of the Police Department and Planning Department. The plan shall specifically outline methods and personnel necessary to control patron activity on and abutting the project site to minimize or avoid land use conflicts. When security services are required pursuant to the plan, security shall be provided whenever necessary and a minimum of 30 minutes after the posted closing time. The property maintenance portion of the plan shall address activities including, and not limited to, trash pickup, recycling disposal and pickup, grease trap cleaning, cooking oil recycling, brewery servicing, deliveries, cleaning or general building maintenance. 23. Deliveries and exterior property maintenance activities shall not be conducted between 8PM and 8AM daily. 24. The use shall maintain a Type 23 or a Type 75 license to sell alcoholic beverages from the State Department of Alcoholic Beverage Control. No other license type shall be permitted without review and approval by the Planning Commission. 25. Live entertainment and dancing shall be prohibited without an amendment to this Use Permit and a Live Entertainment Permit and /or a Cafe Dance permit issued by the City Manager's Office. 26. The operator shall not prohibit persons under the age of 21 from entering the establishment based solely upon age. 27. This Use Permit shall be reviewed by the Planning Commission at a noticed public hearing on or before October 30, 2007. The Planning Director may schedule additional reviews of this permit if there is a determination that the use directly causes or is contributing to conditions found to be detrimental to the community (this provision shall not be construed to diminish the City's ability to enforce this Use Permit or any aspect of the Municipal Code). STANDARD CITY REQUIREMENTS: A. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. B. Signs and displays shall not obstruct the sales counter, cash register, seller and customer from view from the exterior. 14 Resolution No. Page 7 of 7 C. Loitering, open container, and other signs specked by the Alcoholic Beverage Control Act shall be posted as required by the ABC. D. The applicant shall take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, alleys and areas surrounding the alcoholic beverage outlet and adjacent properties must be taken during business hours if directly related to the patrons of the subject alcoholic beverage outlet. E. The exterior of the alcoholic beverage outlet shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. F. All owners, managers and employees serving and /or selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. To qualify to meet the requirements of this section a certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service or other certifying /licensing body, which the State may designate. The operator shall provide proof of completion for all owners, managers and employees within 30 days of the approval of this amendment and new employees shall successfully complete the training within 30 days of initially starting work. G. The project shall comply with the provisions of Chapter 14.30 of the Newport Beach Municipal Code for commercial kitchen grease disposal. H. All signs shall conform to the provisions of Chapter 20.67 of the Municipal Code. This Use Permit for an alcoholic beverage outlet granted in accordance with the terms of this chapter shall expire within 12 months from the date of approval unless a license has been issued or transferred by the California State Department of Alcoholic Beverage Control prior to the expiration date. J. Coastal Commission approval shall be obtained prior to issuance of any building permits. K. The Planning Commission may add to or modify conditions of approval to this Use Permit upon a determination that this Use Permit causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. 15 BLAtA K BLANK �w Item 2 Planning Commission staff report dated January 4, 2007 (with attachments noted) 1-1 ELAN K BLANK 1� CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT Agenda Item 3 January 4, 2007 TO: PLANNING COMMISSION FROM: James Campbell, Senior Planner (949) 644 -3210, iampbell (a�citv.newport- beach.ca.us SUBJECT: Newport Beach Brewing Company Use Permit No. 3485 2920 Newport Boulevard ISSUE Should the City modify or revoke Use Permit No. 3485? RECOMMENDATION Staff recommends that the Planning Commission modify the conditions of approval of Use Permit No. 3485 as described below. BACKGROUND In 1993, the Newport Beach Brewing Company was issued Use Permit No. 3485 to operate a "restaurant/brewpub" with a Type 23 Alcoholic Beverage Control (ABC) license subject to conditions. In 1999, the City authorized an amendment to the Use Permit to allow the restaurant/brewpub to operate with a Type 75 license subject to revised conditions (Type 75 allows beer, wine and distilled spirits associated with a brewpub). On May 4, 2006, the Planning Commission discussed the operation of the Newport Beach Brewing Company in response to complaints by nearby residents, property owners and local business persons. At the conclusion of the discussion, the Commission found that there was sufficient information to review and possibly modify the Use Permit. On August 17, 2006, the Planning Commission considered the matter once again and directed staff to set a public hearing to consider possible revocation of the Use Permit. The minutes of this meeting are attached as Exhibit No. 1. Additionally, the Commission wanted staff to meet with the Brewing Company and neighbors in an attempt to resolve the matter. Staff has met with both parties and there is not a consensus as to how to proceed. K Newport Beach Brewing Company January 4, 2007 Page 2 PUBLIC NOTICE The Newport Beach Brewing Company has been notified of this hearing. A hearing notice indicating the review, potential modification and potential revocation of Use Permit No. 3485 was published in the Daily Pilot, mailed to property owners within 300 feet of the property (excluding roads and waterways) and posted at the site a minimum of 10 days in advance of this hearing consistent with the Municipal Code. The item appears on the agenda for this meeting, which was posted in accordance with applicable law and on the city website. DISCUSSION Neighbors contend that the Newport Beach Brewing Company is violating its Use Permit and that the operators are not sufficiently controlling patron behavior that is creating nuisances. Alleged violations include operating a bar rather than a restaurant, opening the entire dining area on weekends before 5PM, trash in the parking lot and unruly patron behavior outside the establishment. Neighbors contend that patrons create noise, cause property damage, urinate, defecate, and conduct sexual activities, etc. during the late evening and early morning hours. The May 4, 2006 and August 17, 2006 reports outline the complaints and issues. The Brewing Company contends that they are not violating the Use Permit and they have since instituted several changes to their operation, which appears to have had a positive effect. Operational and Physical Changes The Brewing Company has instituted the following changes: • The brewing Company agreed to construct a cover over the existing trash enclosure (building permit under review). • Employee training on responsible alcohol sales has been completed. All owners and employees have received L.E.A.D. training and the applicant is agreeable to ongoing training of new employees. L.E.A.D stands for Licensee Education on Alcohol and Drugs and the 3 '/2 hour training session is conducted by the Department of Alcoholic Beverage Control staff. It focuses on providing practical information on serving alcoholic beverages safely, responsibly, and legally, and preventing illicit drug activity at the licensed establishment. • The operator has relocated the entrance from the parking lot side of the building to the Newport Boulevard entrance (through the outdoor patio) when a queue forms to alleviate noise and patron behavior from causing problems to the immediate residential neighbors. • Discontinued the removal of condiments and menus from the tables. • Discontinued the late night bar menu while keeping the kitchen open at all times. • Installed signs requesting that patrons be respectful of the neighborhood. • Stepped up security sweeps of the parking lot to discourage loitering and boisterous behavior. Z Newport Beach Brewing Company January 4, 2007 Page 3 • Maintain a security presence at least one hour after closing. • Instituted a recycling collection program that minimizes noise generation. Bottles and cans are separated and stored within plastic recycling tubs within the building. The full tubs are loaded onto a truck during the day and empty recycling tubs are dropped off. This method avoids the noisy practice of dumping glass bottles after hours. • Scheduling maintenance activities outside of sensitive hours. These changes have been reasonably successful in alleviating many of the problems associated with the use based upon discussions with neighbors and the reduction of complaints; however, several residents remain unsatisfied. Principally, several neighbors believe the Brewing Company operates as a bar after approximately 10PM several nights a week. Code Enforcement, Police Department and Planning staff have conducted investigations based on complaints by neighbors. Code Enforcement Officer Cosylion reported at the August 17, 2006, meeting that the operation did not violate the conditions of approval based upon his field observations (Exhibit No. 2). It was noted that his observations were not taken during the early morning hours when most of the problems seem to occur. A queue forms on popular evenings and the crowd was boisterous. Noise from the interior of the operation was not considered loud or unreasonable. Additionally, site was free of litter. Police Newport Beach Police conducted an investigation in the fall of 2006 and their report is attached as Exhibit No. 3. Planning Based upon public testimony at the Planning Commission meetings, the following conditions and alleged violations are at issue: • Condition No. 9 currently states: 9. The operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant. An ancillary use is a "use that is clearly incidental to and customarily found in connection with the principal use; is subordinate to and serves the principal use; is subordinate in area, extent, or purpose to the principal use served; contributes to the 2l Newport Beach Brewing Company January 4, 2007 Page 4 comfort convenience, or necessity of the operation, employees, or customers of the principal use served..." During the May 4, 2006 meeting of the Planning Commission, the General Manager of the Brewing Company stated that alcohol sales constituted more than 50% of sales during the day and that alcohol sales are close to 90% of sales during the late evening and early morning hours. Alcohol sales of this magnitude could not be considered ancillary to food sales in staffs opinion. The full menu and condiments that are stored on the tables were being removed from the table after typical meal service hours. A limited late night menu was offered and testimony indicated that food service was not always available during the late evening. The Brewing Company's ABC license limits the gross sales of alcohol to be no more than the gross sales for food on a quarterly basis and no actual gross sales information is in evidence. Staff recommends the following changes to Condition No. 9: 9. The operation of the brewery and the service of alcoholic beverages shall be ancillary to the prime food service operation of the restaurant . the brewery and the service of alcoholic beverages may not be conducted without the concurrent operation of the restaurant during all hours the use is open for demand. The example augments what "ancillary" is for this use and the gross sales limitation is identical to the language contained within the ABC license condition. • Condition No. 10 currently states: 10. The approval of this Use Permit is for a restauranUbrewpub and shall not be construed as the approval of a bar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service hours (food products sold or served incidentally to the sale or service of alcoholic beverages shall not be deemed as constituting regular meal service) nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and/or dancing. The City permitted a "restauranUbrewpub." The restaurant aspect was stressed in the original application and in testimony from the applicant in the 1993 approval and with the 1999 amendment. The brewing, sales and service of alcohol was characterized by the applicant as accessory to food service; a convenience or amenity and a way to complement food sales. 2 Z Newport Beach Brewing Company January 4, 2007 Page 5 After approximately 10PM, typically on Thursday, Friday and Saturday nights, the use takes on a more "bar -like" character as security personnel are provided on popular nights, a queue forms outside on some evenings suggesting occupancy to capacity, limited or no food service was available, limited food is ordered by patrons, alcohol sales dominate and persons under 21 are excluded. These traits are indicative of a bar rather than a restaurant. During the August meeting, several Commissioners seemed to stress that the operation must serve food during all operating hours to avoid being labeled a bar given the operational characteristics described above. The operator has eliminated the late night menu and has eliminated the practice of physically removing the condiments and menus from the tables. The full menu is now available for service during all operating hours and they have stated that they are "pushing" food sales in the late evening with some success. With the kitchen open and with meal service available, the question of whether or not the use has appreciably changed remains. Even with the kitchen in full operation during the late evening and early morning over the last few months, the use retains a bar -like character after approximately 10PM most evenings. At the conclusion of the August meeting, several Commissioners seemed to be more concerned with alleviating the nuisance to the neighborhood rather than drawing a bright line between what constitutes a bar or a restaurant. Given that the operational changes instituted by the Brewing Company seem to have had a positive effect, staff recommends the following modification to Condition No. 10: 10. The principal use authorized by this Use Permit is The appFeval ^ this. Pit is—#ar a restaurant/brewpub. The accessory operation of a bar is permitted provided that the kitchen remains open for the service of meals and that a full menu is provided. This Use Permit a+A shall not be construed as the approval of a bar, cocktail lounge, or other use with the principal purpose of serving alcoholic beverages during heum net ^° ^ espeA'ing `° - ^'°• Meal s eFymG° hn „YO (feed pr^llwAs sold ,O .e d ineidentally to the s °I° or servise ^f nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and /or dancing. The kitchen of the all times. • Based upon the complaints received from the community, the applicant was not taking reasonable steps to discourage and correct objectionable conditions that constituted nuisances as required pursuant to Standard Condition D. City staff was not able to verify the complaints as they were not observed directly. The applicant has posted signs to alert patrons to the fact that residences are nearby. The operator has stepped up security sweeps of the parking lot and grounds to 2-� Newport Beach Brewing Company January 4, 2007 Page 6 discourage inappropriate behavior. Staff is not suggesting any changes to Standard Condition D; however, staff recommends several new conditions: 20. The operator shall discourage loitering on site at all times the establishment is open or employees or owners are present. 22. The applicant shall prepare a detailed security operations plan within 45 days of necessary to control patron activity on and abutting the project site to minimize or avoid land use conflicts. When security services are required pursuant to the • Employees did not receive adequate alcohol service training in accordance with the intent of Standard Requirement F. No record of the completion of any training program was on file with staff and the operator indicated that their staff had not completed any such training program pursuant to this condition. Owners and staff of the Brewery have since completed the L.E.A.D. training program conducted by the ABC Board staff and no current violation exists. Staff suggests a change to the wording of the condition to require ongoing training. F. All owners, managers and employees serving and /or selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. To qualify to meet the requirements of this section a certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service or other certifying /licensing body, which the State may designate. The operator shall provide proof of completion for all owners, and new employees shall successfully complete the training within 30 days of initially starting work. The establishment shall oo ply ith the , n„immeRts �s • Condition No. 6 currently states: 6. The net public area of the restaurant/brewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 p.m.) shall be limited to 1,500 square feet. The balance of the net public area shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m. daily. 2'`I Newport Beach Brewing Company January 4, 2007 Page 7 No violation of this condition has ever been observed; however, discussions at the previous Planning Commission meetings focused upon whether the use of the word "daily" in the second sentence conflicted with the Monday -Friday limitation of the first sentence. Staffs position has been that there appeared to be a conflict given that Special Condition #1 of Coastal Development Permit No. 5 -93 -137 (that contains a similar net public area limitation) applies 7 days a week. Staff now believes that there is no internal conflict as the use of the word daily refers to the specific limitation outlined in the first sentence in that the barrier and area limit before 5PM must be in place Monday, Tuesday, Wednesday, Thursday and Friday. There is no disagreement that Special Condition #1 of Coastal Development Permit No. 5 -93- 137 and Condition No. 6 are in conflict. The operator admits to opening the entire dining room on weekends and Planning staff and the Police Department have observed the entire dining room open on weekends prior to 5:OOPM. It is staff's present belief that this practice is not in violation of Condition No. 6 and it is in oonfict with Special Condition #1 of Coastal Development Permit No. 5 -93 -137. The City agreed to enforce Condition No. 6 in 1994 in a letter to the Coastal Commission. The City Attorneys office has indicated to staff that enforcing conditions imposed by a different jurisdiction is not advisable. Due to the fact that parking problems or other operational nuisances are not occurring during the day before 5PM, staff is not recommending a change to Condition No. 6. Other Changes to Conditions Several additional changes to the conditions are recommended (Exhibit No. 4). In addition to changes discussed previously in this report, several noteworthy changes to other conditions and new conditions are recommended that should reduce the impacts of the Newport Beach Brewing Company on the neighborhood. • Conditions #2 and #4 have been complied and are no longer necessary. • Require a trash enclosure cover (amended condition - #14). • Condition #15 regarding a perimeter wall and underground utilities was waived previously and the condition is in essence a finding, and therefore, this condition is also no longer necessary. A wall cannot be placed between the parking lot and the abutting residences as it would interfere with parking and a wall will not block noise from reaching the second level of the abutting homes. • Closure of the parking lot entrance when necessary and thus relocating the queue to Newport Boulevard (new condition - #19). • Discourage loitering at all time employees of the use are present (new condition - #20). 25 Newport Beach Brewing Company January 4, 2007 Page 8 • Posting of signs to alert patrons of the need to be courteous of neighbors while outside the establishment (new condition — #21). • Requirement of a security operations plan to be reviewed and approved by the Police and Planning Departments (new condition - #22). • Prohibiting deliveries and property maintenance activities between 8PM and 8AM daily. Property maintenance activities listed include anything that might create objectionable noise (new condition - #23). • Maintenance of a Type 23 or a Type 75 ABC license with changes in the type of license to be reviewed by the Planning Commission (new condition - #25). • Prohibition of live entertainment or dancing (new condition - #25). • Prohibiting the exclusion of persons under the age of 21 (new condition — #26). • Staff proposes two future reviews by the Planning Commission (6 months & 1 year) as a means of monitoring the use (Condition No. 27). Summary Staff believes that there is sufficient evidence based upon the staff investigations and testimony given by members of the community and the operator at the prior meetings to warrant modifying the conditions of approval to alleviate detrimental conditions associated with the operation. Staff does not believe that there is sufficient evidence to warrant revocation of the Use Permit and staff does not recommend reducing the hours of operation either at this time. The operational changes instituted by the Brewing Company, the revisions to the conditions of approval and with the Brewing Company's recognition that they need to operate in a responsible manner taking into account nearby residential uses should be effective in avoiding future problems. ALTERNATIVES The Planning Commission has three options to the recommended action: 1. The Commission can take no action. 2. The Commission can revoke the Use Permit. Should the Commission choose this action, staff will bring back a resolution at the next meeting to consider. 3. The Commission can adopt other changes to the conditions of approval including a reduction in the hours of operation. Staff has drafted a resolution reflecting the modification of the conditions of approval as noted in this report, but unfortunately a through review of it by the City Attorney's office was not possible. The resolution will be forwarded to the Commission in advance of the meeting for consideration. Z(0 Prepared by: pj!!r� r Exhibits Newport Beach Brewing Company January 4, 2007 Page 9 Submitted by: David Lepo, Plann' Director 1. Minutes from August 17, 2006 meeting 2. Code Enforcement report 3. Police Department report 4. Revised conditions of approval (draft) 5. Draft Resolution (to be submitted under separate cover) 20 Exhibit NO' ry2006 meeting Minutes from August 17 Exh'�biF �10 1 M�dWcs �m Auy�} il�zoob Mke*ng Planning Commission Minutes 08/17/2006 Page 18 of 49 • Condition 63 should clarify the times. nmissioner Henn would like to come up with solutions that will feel like there improvement even with a slight increased in the intensity as measured by count. nmissioner Hawkins supported the operational reviews presented, but thinks it parking standards need to be adjusted, do it through the code not through the lication. Chairman Eaton asked if the Staff had enough direction. Ung answered yes. • Chairman Eaton continued the hearing to September 7, 2006. • Chairman Eaton asked if Staff will have findings and revised conditions for hearing. Ung said Staff will prepare a resolution for approval with findings tions of approval with the changes recommended tonight. was made by Commissioner Toerge to continue the Our Lady Queen Church Expansion (PA2005 -092) to the meeting of September 7, 2006, Peotter, None Cole UBJECT: Newport Beach Brewing Company (Use Permit No. ITEM NO.4 85) 2920 Newport Boulevard I UP No. 3485 e Newport Beach Brewing Company has operated a restauranUbrewpub rsuant to Use Permit No. 3485 since 1994. This permit was issued by the City Continued to 1993 and it was subsequently amended in 1999. The City has received several 0912112006 mplaints related to the operation of the use and the Planning Commission will aluate the complaints, the operational character of the use and the condition der which the use operates. At the conclusion of the hearing, the Commission ay require alteration of the operation or it may delete or modify conditions of proval. The Commission also may conclude that no changes are necessary and location of the Use Permit is not being considered at this time. stant City Attorney noted that Commissioner Hawkins recused himself item due to the appearance of a conflict. Commissioner Hawkins agreed sed himself. mes Campbell, Senior Planner, gave an overview of the staff report noting: . The Newport Beach Brewing Company was established in 1994 by of a Use Permit No. 3485. 2°I file://CADocuments and Settings\ JCampbell \Desktop\nm08- 17- 06.htm 12/20/2006 Planning Commission Minutes 08/17/2006 Page 19 of 49 • In September 1999, the City Council approved an amendment to the use permit that approved full alcoholic beverage service with the sale of distilled spirits. • The City, earlier this year, received a complaint letter regarding the operation of the establishment from a group of residents in the neighborhood. Those complaints relate to the operation itself and patro behavior around the establishment. • A report was presented in May of this year at which the Planning Commission asked for an additional hearing to review the application and look at whether changes need to be made in the operation or conditions of approval. • The current report outlines questions and asks for clarification of what was authorized. A restaurant/brewpub was authorized. The residents contend the facility is being operated as a bar primarily after 10:00 p.m. and tha operation is leading to nuisances in the neighborhood. • Is it a bar at those hours, and is it authorized pursuant to the use permit? Staff is asking for clarification on condition 10 (page 3 of staff report). • In staffs opinion, a restaurant and a bar were authorized. Can a bar operate without the restaurant being there at the same time is a question. • Historically, the City has looked at these operations and balanced the hour that it has operated primarily as a bar against the hours it is operated predominately as a restaurant. If the primary activity is a restaurant, the use is deemed a restaurant. We believe that is what is happening there today. There is food service during those hours and up to recently they have had limited bar menu in the late evenings. It might not constitute regular food service, but food is available most of the time. • What staff is looking for, is what was authorized, and then we can look a whether they are operating with the use compliant with the conditions o approval. • There is a side issue with condition 9 that indicates the operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant. In that condition we are saying it is a restaurant and food service is really the primary use. So they is a question as to whether or not alcoholic beverage service has no become the primary use. • In addition, there is no time limit to this condition. After 10:00 p.m. in the evening, even the General Manager at the May meeting, indicated that the primary sales during those late evening and early morning hours is alcohol. Again, that is more like a bar and goes to the original question, what did we authorize? • Another issue that has been raised is there is a current limitation on the dining room area during the day time. There has been a condition the Cit 3d file: / /C:\Documents and Settingsl JCampbe111Desktop\mn08- 17- 06.htm 12/20/2006 Planning Commission Minutes 08/17/2006 applied in 1999 which limited it during the week. There is also a Coas Commission permit that would indicate it is a daily limitation, at least frc their perspective. The City is charged with enforcing this action based up a commitment that the City made in 1993 to enforce this provision. The C has been enforcing it on the weekdays and not on the weekend. There an issue on how this condition has been worded and enforced, and whett or not the condition applies daily. The brewpub has had the full dining open on the weekends. The language of the Coastal Commission condition alludes that they shouldn't be. The City's condition can be interpreted both ways because it indicates "Monday through Friday" but also talks about the physical barrier being there "daily ". This condition seems to contradict itself and should be clarified anc modified at this time. The residents have indicated that there is a basic lack of control of patror in the parking lot. In the late evening a queue forms outside this popul establishment that is pretty much at capacity in the late evening and ear morning hours. These folks can at times be boisterous and that leads to variety of nuisances. The question is, is there control in the parking lot? The brewing company has security guards there and they represent to s that they are doing their best to control the patrons in the parking lot. Gi% the proximity of the queue line to the residents, there may be ways alleviate some of the problem by relocating the line to the front of building close to Newport Boulevard. Other folks may be impacted by do that and there may be a need to change the patio area to bring people That might work in the evening hours to alleviate some of the issues in parking lot given the fact that there are residents living adjacent to parking lot. Another issue is whether or not they have complied with training program that is required by the use permit. The City required that the manager proprietor and all employees undergo responsible alcohol training. The condition has not been complied with and since the City has informed the applicant, they have indicated that this training has been completed. However, there is no evidence to date. The purpose of the condition is tc make sure that the people serving alcohol are trained and serving in e responsible manner. A lot of the complaints that the residents are making tc us are in most cases directly attributable to the consumption of alcohol. We are hoping more responsible sales of alcohol and the proper training of staf may alleviate some of the ongoing issues. The Cannery Village Concerned is a group of residents who have indicates that they would like to see changes to the conditions that have beer forwarded to you and that is something that can be considered this evening. Staff is recommending that we change or modify conditions 9 and 10 clarify specifically what the Commission believes was authorized in 1999 eliminate ambiguity in those conditions. Based upon the determination the use, we can go forward and modify those conditions to affect posit) change and reduce some of the nuisances. file: / /C:1Documents and Settings\ JCarnpbell \Desktop\mn08- 17- 06.htm Page 20 of 49 31 12/20/2006 Planning Commission Minutes 08/17/2006 Page 21 of 49 • There are a variety of complaints specific to the operation, trash encic dumping of bottles, and property maintenance occurring at hours that u otherwise disturb residences. We are looking at the screening of the enclosure and to alleviate some of those nuisances through conditions. • The Police Department is here to give testimony on law enforcement is: that have occurred there, as well as the Code Enforcement officer who conducted an investigation, a report of which has been provided for consideration. :e Chairman Eaton asked if there are certificates that the applicant can p the City that would verify that the alcohol training had been accomplished. Campbell answered he is not aware of how that training was provided and aware of the availability of certificates. He had been assured that they he n through that training. As enforcement of that condition, he would like to s e evidence that they have gone through that training. ommissioner Henn noted his confusion on the range of remedy that is availal on this matter. He presumes it can include a change in hours of operation, off restrictions on how the establishment operates, does it also include revocation he distilled spirits license? H asks the question fora` better understanding of t range of remedy that is before this body. Campbell answered that the Commission can change the conditions oval, which may change the nature of the operation, but revocation has i noticed here. Can they revoke that one license type, it wouldn't revoke B use permit but it could be a condition change. iron Harp, Assistant City Attorney, noted the procedure for revocation is laid out Chapter 20.96 and there are very specific procedures that need to be followed fore this body can consider a revocation. It was the intent to bring this matte ck for at least one more hearing, so the purpose tonight is to primarily have the ocussion of the items, discussion of what, if any, conditions you would like to be )dified or additional conditions, and whether or not a revocation hearing would appropriate, and we will bring it all back the next time. Henn noted that the range is wide open with the proper noticing. Harp answered yes, there are specific findings that are needed for revocation. Chairman Eaton noted the revocation would apply to the City's permit, Alcoholic Beverage Control Permit, correct? Harp answered, yes. ice Chairman Eaton asked if there had been any investigations by the ABC, so, do you know what the results were? Campbell answered, yes there was an ABC investigation that began uary. The operation was visited and the police were consulted, the findii not conclusive to take any particular action and the investigation was close file: / /C:\Documents and Settingsl JCampbe11 1Desktop\mn08- 17- 06.htm 12/20/2006 Planning Commission Minutes 08/17/2006 Harp noted the ABC is a different procedure that is set up under lance and is different from the revocation. Wood noted that part of what Commissioner Henn was trying to get at the distilled spirits was something that was added to this use permit at sl I, so there is a condition that allows that, and would it be possible for ning Commission to delete the condition allowing that portion of the opera )ut going through the full revocation procedure? Harp asked for more history. Campbell answered that in 1993 a use permit was authorized to operate 1w pub under a Type 23 license. In 1999 there was an amendment to the u: rmit that authorized a Type 75 license, which is a full alcoholic beverage servi a brew pub. If you were to do that you would be terminating the amendme it was granted in 1999. There isn't a specific condition that authorizes th anse type. Harp asked if there was one use permit. Campbell answered yes, one use permit that was just amended. Harp noted that, in general, if you take that type of measure, I recommend tt give full notice. You still have to make the findings for basically a simi idard for revocation as far as the impact on the general welfare of t imunity. We will notice it for you and bring it back at another hearing if that ething you would like to consider. Chairman Eaton clarified that the modification to expand from beer and w ation to a full distilled spirit operation was first applied for and denied by ning Commission and then granted by the City Council, and it was at t t that the applicant sought the Type 75 license from the ABC Board once approval for that kind of license. Campbell confirmed that was correct. immissioner Toerge asked which condition allows for the full bar and full rvice or the provision. Campbell answered there is no condition that specifically addresses that. The iitions for the amended use permit are on pages 18 -22 of the staff report. re is no specific condition related to the license type but the project descriptior n which the amendment was approved was clearly for that license type. nmissioner McDaniel noted that hand written page 129 of the report ut that in a discussion of August 5, 1999 from the City Council. The issue in up by the City Council and the vote was on page 131, which shows w Council was going and how they voted. r Toerge noted there must be something more than the minutes this. r. Campbell answered that on page 100 is the staff report of the Page 22 of 49 file:HC:\Documents and Settings\ 3Campbell \Desktop\mn08- 17- 06.htm 12/20/2006 Planning Commission Minutes 08/17/2006 ,nmission, and the City Council's report is on page 97, and the minutes for etings are after that. I wanted to give you that so you could see what until was looking at in 1999 and, indeed, the project description is for a T license. Wood noted handwritten page 19 of Exhibit B Findings and Conditions 1 oval for Use Permit approved by the City Council 09/13/1999 and, assum is an exhibit to the resolution that approved it. One of the findings is Ill renience of the public will be served by the sale of distilled beverages in iurant/brewpub setting. Harp noted he will take a closer look at these conditions but the Commis tell us exactly what they are interested in doing then we will take it back it up to come back in the proper form procedurally. imissioner Peotter noted condition 7 on handwritten page 20 says the t limited 6 a.m. to 11p.m. Sunday through Thursday and only on Friday irday extended to 1 a.m. The staff report includes Thursday, I don't I ;h is which. Matt, Cosylion, Code and Water Quality Enforcement Officer for the City, -o Newport:Beach, :gave. an overview of:his report, noting: • Received complaint letter from residents of Cannery Village noting concerns and complaints related to operations at the Newport Brewing Company. • We were asked to take a look and ascertain whether the complaints happening or not, and to do a fact finding on what was actually taking there. • We went there on three separate occasions. First one was February which was a Thursday night at approximately 9:45 p.m. There was not of activity at the bar or outside the parking lot. The parking lot to relatively clean, there was trash but not a nuisance. There was no q line and you could not hear voices from the patio that night. • The second trip was on February 4th which was a Saturday. It essentially the same thing, no queue line, the parking lot was pretty maintained. • The final visit made was on February 10th, which was a Friday night. Or that night there was a queue line, some individuals in the parking to screaming at each other, there was a lot of loud conversations going on anc the parking lot was clean but a lot of noise and volume going on from the patrons at the Brewery. He contacted the on -duty manager, Jerry Kolbly on the premises and discussed concerns about the noise from the queue line patrons. We discussed options such as moving the queue line to the other side of the building or to the front. Also discussed some of the othe concerns in the complaint letter such as the trash. Mr. Kolbly agreed tc have his staff monitor the parking lot for trash. • We had a good discussion that night relative to what was in the Page 23 of 49 file: / /C:\Documents and Settingsl JCampbell \Desktop\mn08- 17- 06.htm 12/20/2006 3q Planning Commission Minutes 08/17/2006 Page 24 of 49 letter. I followed up with him the next week and had more discussions. • In terms of the property and activities occurring in the early morning hours, I brought that up to Jerry about the bottles being picked up and obvious) making a lot of noise during the process. Jerry was asked to see if those activities to be made after 8 a.m. as a help to the community so they would not have to have those early morning wake ups. • In response to trash and debris issue, we do regular drive bys through the area. In terms of the amount of trash, there was general trash but it wasn't massive amounts of trash laying all over the parking lot so we did not issue any notices. We did ask Jerry to have his employees do general sweeps in there too, to make sure it is kept clean. • There was also the issue of closing off a portion of the area before 5 p.m. daily. We went out there on one occasion and they did have it cordoned ofi so that a portion of the business was shut off. • That concludes a report on the investigation. Vice Chairman Eaton asked the timing on Februar' 10th. 'He was answered it was about 10 p.m. and the queue line had about 10 to 11 people` stretching from the front of the building to almost where the alleyway was. nmissioner McDaniel noted that you have to respond when you get complai I this complaint was in January so you dealt with it in January and F.ebrua complexity of this kind of situation changes when it is cold outside and peo to work in January and February as opposed to summertime. I have I stions. Were you able to look at this place June, July or August maybe eN /, and were you able to look at it after 11 p.m. at night? Cosylion answered we do not usually go out after certain hours for es as we are not police officers. So we let the police handle the late city. But no, we have not gone out there during the summertime. We h ;tly received complaints relative to loud noise, we have only two ruary that we have documented. Any of those complaints would have arded on to the Planning Department. Chairman Eaton noted that it sounds like when you went out 45 minutes at 10 p.m. that there was more activity at that point and there was the qi Cosylion answered that on each day they went out around 9:45 or 10 p.m. Saturday night there was activity around 10 p.m. Harp noted his opinion that you would schedule an appearance to revoke thl :ndment to the use permit. It will be the proper procedure for handling @use there isn't a condition that relates to full on -sale of alcoholic beverage in order to basically deal with that issue, you need to revoke the amendment. a Chairman Eaton stated you are talking about not revoking the entire revoking the amended portion. PRIM file: / /C:\Documents and SettingsU Campbell\Desktop\mn08- 17- 06.htm 12/20/2006 35 Planning Commission Minutes 08/17/2006 Harp answered that's correct. Vallercamp, Detective Sergeant with the City of Newport Beach, noted: As far as changing from a Type 75 license to a Type 23 license, wh would be a full bar to the small batch brewery, that would be something t the ABC would probably look into. They are the arbiters of those things. . We have a sophisticated method of documenting all our calls for service it any given area and I had my detectives run a report from January 1st of '0( to August 10th of '06, so it is roughly an 8 month period. I used location: such as in our computer aided dispatch, when an officer calls out an activitl they could say the Newport Brewery, the Municipal Lot, 30th and Villa, usini all those parameters, I checked the area for our level of service and hov, many calls we have had in that vicinity. During that time frame of Januarl 1st through August 10th, there were 41 entries. 41 activities listed at the Newport Brewery, the Municipal Lot, 30th and Villa, etc. , 23 of those calh were calls from the public. They will require further research to determine the disposition. The remaining 18 of those were bar checks, parking to checks, some of them could have been an officer using one of those locations as a landmark to call out a car stop or a pedestrian stop. In the City of Newport Beach currently we have 341 active ABC licenses. Those establishments are authorized to sell alcohol in our City. In the area in which we report these, we break them down into reporting districts. The reporting district we are concerned with here is reporting district 15. In thi: reporting district 15, which is Balboa and 20th to Balboa and 34th Street, ul Newport Boulevard to the Coast Highway, in that triangular area there are 73 ABC license establishments. In 1999 when the Newport Brewery Company applied for their Type license at that time there were 60 ABC license establishments in report district 15. There is a high concentration of outlets in this general vicinity. In 1999 the citywide total arrests there were 3,704, of those in the enti City. 1,656 of those arrests were related to alcohol, either drunk drivin drunk in public, those types of issues. In 1999 again in reporting district 1 there were 624 total arrests, 65% of those were alcohol related, either drui driving or drunk in public. Bringing it to the year 2005 the citywide tol arrests were down a bit to 3,115. The alcohol related arrests citywide w 1,056 so we are talking roughly 33 %. In reporting district 15 in 2005 the were 646 total arrests and the percentage of alcohol related arrests in tt specific reporting district was 65.4%. So you can see we are pretty bu here in reporting district15. . Lastly, the State Alcohol Beverage Control had a case specifically with Newport Brewery somewhere around April 11th of 2006 and they cloe their case on August 4th. At that point, the advised us, "the majority complaints were from the outside area." :ommissioner Toerge asked if the 341 outlets in the City and the 71 outlets rea 15 include retail outlets. Is there a breakdown? Page 25 of 49 file: / /C:\Documents and Settings\ JCampbell \Desktop\mn08- 17- 06.htm 12/20/2006 ` Planning Commission Minutes 08/17/2006 Vallercamp answered yes. He can provide the breakdown at a >sioner Henn clarified that the ABC investigation stemmed from the area? active Vallercamp answered that he had called the investigator who said tha their investigation and received no further information on what it pertained to. mmissioner McDaniel noted that there has been input from some sources Police Department doesn't respond very well, and when they do, they say ught a place next to a bar you dummy what did you do that for? Would you respond to that. sctive Vallercamp answered that is not a typical response of an officer. I going to say whether it occurred or not as I wasn't there. I would be surpr somewhat disappointed if an officer told me that. rmmissioner McDaniel asked do you believe that when there is a call that >ponse is fairly quickly? Can you give us a feel for response time? There is iication of negligence„ it is the same old thing, it's just a bunch of drunks and not going out .there because we're too busy over here doing someth portent. That's the allocution and I thought you would like to be able to respc that before =.tective Vallercamp answered we have more officers down here as there ore pedestrians, more parties down here, more ABC licenses and there ore calls in this particular area than any area in the City. We deploy very he iwn here in this vicinity of the entire Balboa area. I would say our response probably faster than most in the county. iissioner McDaniel noted it would be %fair to say that you're busy down hi iy and you would already be here responding to something else, so y n't have to come from down coast. You've got adequate amount of pol attending to activities that are here. I just want to get the opportunity Vallercamp answered yes. Chairman Eaton asked about a copy of an article that appeared in I ,ter on July 7th that appears to quote, from the Police Department, incide ;d to bars in the City and the Newport Beach Brewing Company listed as I highest generator incidents between December 1st, 2005 and June 6th rear. I am wondering if you can comment on that and its accuracy a ier these incidents can be attributed to these bars and if so how. ietective Vallercamp answered that it falls in line with the statistics that iven you, the 41 calls. This ended in June 6th and my statistics ended 0th. I think this is an accurate representation citywide. Chairman Eaton stated the article says most of the calls involve fights intoxication occurring outside the bars. Is that something that can uted to these incidents? Page 26 of 49 i file: / /C:\Documents and Settings\JCampbell\Desktop 1mn08- 17- 06.htm 12/20/2006 37 Planning Commission Minutes 08/17/2006 rtive Vallercamp answered certainly alcohol plays a part there, rations and general boisterous behavior. This is such a highly concf with so many bars and restaurants down there that serve alcohol. Chairman Eaton said what I was trying to get at was when you sU cing, I thought you had said that sometimes when you use tl fication criteria it's even possible for vehicle stops that happen to be at section. So, I was trying to figure out if any of these incidents would I those kinds of things, or whether they really were problems associated of with this particular bar. active Vallercamp answered he had spoken with Sergeant Harford and he go statistics from the same computer aided dispatch system that I did. Some o >e could very well be the landmark of stopping a car at Cabo Cantina iefore it shows up as some sort of activity at that location. Chairman Eaton asked do you have any sense at all as to how many incidents really were related to the patrons of this bar? ctive Vallercamp answered without rt, whether? it;;was;an. arrest report ically.,reading dach of them,l don't. hand pulling each event and each or crime report of some nature, an Miles of Miles Law Group, representing the Newport Beach Brewi pany, stated I am actually going to try to limit my statements to address! of the conditions that were raised in the staff report and some of 1 Dretive efforts with respect to the main conditions 6, 9 and 10. 1 would like it time for the General Manager to address some of the voluntary conditic have been proposed by the Brewing Company and the community outree Is that have been made to address what we think are the actual concerns tl ;ts the operation of the brewery and the Cannery Village. dition 6 -1 don't really know if there is much of an issue to that with respect tc final word, daily. Normally when you interpret a condition that in specific erns the general and it is very clear from the very first sentence that the 1,50C prohibition is Monday through Friday. So, I believe the final word daily is y a reference to the days in which you have the preclusion it applies. Actually second sentence is redundant and can be stricken if that would be e mdition 9 - addresses the issue ancillary. The way the brewery reads conditi you have three components. The operation of the brewery and the service :oholic beverages shall be ancillary to the primary service operation of tl staurant. Again, during full hours of operation you are going to have differe eakdowns of food and alcohol and even beer. So really, especially the way tF e alcohol licenses are drafted, they deal with quarterly revenue. I don't think it e most appropriate way just to focus in on an hour because there is going to I iomalies throughout the hours of operation. There are going to be hours tF e 100% food service, or the lions share is food serve and there may by inute intervals it will be all alcohol. Really, condition 9, 1 think, addresses tl- id talks in terms of ancillary with respect to three components. I think that in tl ,erall picture of the 13 years that this condition has applied, I think the conditi drafted has worked and I don't think it needs to be modified. In terms arification we are willing to suggest clarifying language if that is the will of tl Page 27 of 49 i file: / /C:\Documents and SettingsU Carnpbell\Desktop\mn08- 17- 06.htm 12/20/2006 Planning Commission Minutes 08/17/2006 ission. mdition 10 - I think boils down to the phrase, hours not corresponding to regul Dal service hours, and I think Jerry will expand on the fact that full meal servi going to be provided through all operational hours of the brewery. I think tF is condition 10 to rest. Unless you are of the mind set that the regular me rvice hours can't be established by the Newport Beach Brewery Company. )uld also like to point out that condition 10 does reference alcoholic beverag opposed to beer. I think conditions 9 and 10 do reference the fact that the ,tilled beverages being served, so there is a reference point in the conditions pport that position. ntinuing, he noted with respect to a use permit with conditions, once they an ied upon, they become a fundamental property interest. I want to addres! mmissioner Henn's inquiry about remedies and go into a little bit of what th( indard is here for reviewing a conditional use permit. Just so everyone knows, independent judgment standard is what applies if a court were to review the lion of a city. It is a far less deferential standard of review than I think you migh rmally be used to in terms of discretionary approvals and is based upon actually cisional law out of 4th Appellate Division 3, which was the classic Goat Hil fern case in Costa Mesa, so it appears that drinking establishment make prett. od land use law. So, we are dealing with a fundamental interest here, it is ven portant. We see `a very big distinction between clarification and modifying o coking in part or in whole, conditions in this permit. would like to address the procedural question that the Commission dressed. I see it a little bit differently. It is true that Chapter 20.96 doe dress revocation. I would like to read Sub part A, titled Duties of a Plannir rector, which states, "Upon the determination by the Planning Director that the R reasonable grounds for revocation of a use permit or other discretiona proval authorized by this Planning Code, that revocation hearing shall be set I Planning Director, the Modification Committee, the Planning Commission, City Council, whichever took final previous action on the permit." The poi re, and it is a procedural one, is that I believe that in both 1993 and 1999 tl al action, with the coordination of the Coastal Development Permit, but initial Ih the use permit and in 1999 1 believe the City Council took the final action ( Rt. So, the way I read revocation, if you determine that revocation is what v a talking about I would have to say the public notice that was posted doesi ;Iude revocation. It didn't merely limit this hearing to reviewing the use permit, ates the Commission may also conclude that no changes are necessary. vocation, the use permit is not being considered at this time. That infers that initially being considered, so I hope that you do realize that revocation is n !cessary. I think to the extent that we are addressing the revocation issue tt tial threshold question is whether there has been a determination by tt anning Director and secondly, I believe that the City Council shall set th aring. There is a question as to whether what we are doing right now propriate. Moving beyond that, I would like to point out that, again in tt iginal approval and again in 1999, in the staff report the actual essence of tt e permit is that you have conditions that protect against these types isances and the finding that has to be made is that the use with the conditioi consistent with the General Plan, the specific planning in the area and that the a no interferences with the public health, safety and welfare. I think with the )se two express findings by the City Council and the 13 years that ha) inspired, I think that is really what this body is up against in terms of making Page 28 of 49 E .. file: / /C:\Documents and Settings\JCampbell\Desktop\mn08- 17- 06.htm 12/20/2006 Planning Commission Minutes 08/17/2006 that somehow it is warranted to truly consider revocation or really antive modification to these permit conditions. would like to point out that there has been a lot of late correspondence and w idn't have the most formal presentation, but we had to deal with a lot of la1 orrespondence. One of the addressed items was a receipt of August 5th august 5th was a date in question where there was testimony from a Mr. Reef, elieve, that somehow there was no food service in the late hours. That is a ,sue for the Commission and I want to provide this receipt that shows that 1:00 p.m. on August 5 that in fact full service was provided, half Chinese chicke alad and fettuccini alfredo. That actually went on until 12:56 a.m. I don't know its was actually submitted. (he submitted it for the record). There is a lot take here and I would like to reserve time for rebuttal, or at least to respond 1 our questions, and I would like to hand this over to Mr. Kolbly to talk about the it nd outs of what has been offered by the Brewing Company to address nois ;sues and issue of parking lot, the queue, trash and whatnot. Chairman Eaton asked Mr. Harp to discuss issues of level of review mental interest and which body has jurisdiction to consider revocation ani Harp stated continuing to look at,the.Code sections if there is going to be dification or addition to the' conditions,' then you`are clearly'the body that viol idle that matter. If it is revocation, the alcohol beverage ordinance, which 9060, is primarily the use permit that they were obtaining allows for it to be the Planning Commission, or the Planning Director, to revoke the permit and 6 the procedures to follow related to 28.9 says that it is set before the body tt k final action, the Planning Commission action was appealed to the C until and there is an express provision in 29.0640 that where I read it exeml appeals so I believe the Planning Commission would be the proper body ar revocation. As far as the standard of review goes, I don't think that is ue. You need to make a decision based on the record that is here before yc t would be the decision that would eventually be litigated. :e Chairman Eaton affirmed that this is the ✓ocation. I assume also that whatever this the Council. Harp answered yes. proper level to hear modification Commission does can be appeal Miles noted that the majority of the conditions in the permit were in 1993, 1 don't believe there was an appeal at that point in time. mmissioner Toerge noted condition 9 is clear. The operation of the bray d the service of alcoholic beverage shall be ancillary to the primary food ser eration. You used the word anomaly to describe certain hourly quotations, our last hearing there was a statement by the general manager that 90% of :eipts after 11:00 p.m. are from alcohol. You consider that ancillary? Miles answered yes. What I am talking about is if you take a deviation over hours of operation. issioner Toerge answered I understand, but let's not do that. Page 29 of 49 file: / /C:\Documents and Settingsl JCampbell \Desktop\mn08- 17- 06.htm 12/20/2006 'a D Planning Commission Minutes 08/17/2006 said 90% of the receipts are alcohol, do you consider that ancillary? Miles answered that the operation of the brewery and the service of alcoho arages are ancillary to the primary food service operation of the restaurant. :ration is not broken down into certain segmented hours of operation. Again point would be taking it to the logical conclusion, what happens to that if rtes, 5 minutes, it is ancillary within the language of condition 9. >sioner Toerge noted the service of alcohol is supposed to be tied eating hours that are certainly not after 11:00 p.m. Miles noted that for the brewery the regular meal service hours are all hours Kolbly, General Manager of the Newport Brewing Company, noted: • Referring to condition 6, during that time of the day the service is 100% f in the area. Now, if you take the restaurant away from me on Saturday Sunday afternoons where I am strictly serving food in that area it will problematic. • My. partners and I agree.about the clarity otthe.conditions. • There will be a roof cover for the trash and we are discussing relocating line after 9:00 p.m. off the entrance off Newport Boulevard. • We have started discussions with security regarding the preparation of detailed security plan. • We have tried to work with the neighbors on how to work out the situation. Everything that we brought to the table was not accepted and the impression was that the neighbors wanted the establishment to be closed. • The business has been there over 11 years and there are barely any fights. You can go to Disneyland and see fights there. • This is a great establishment for the patrons and tourists all the way Germany. Now, these residents that just moved in over a year ago saying we are no good. This is not the way we run things. mmissioner McDaniel noted there are some issues outside the establishme I you have no control over; there are some issues that your establishment ising in the neighborhood. My view to start with is to give you time to fix it ai and do better and then come back and see how you did. I am not interested ocation at this point, but there are issues in terms of trash, things patrons do community, and there are certain things you can do to fix it. If we can get y ving towards that , which I think you are interested in doing, maybe all of tl i go away. The other side is the residents have to recognize that they bouc nething next to where you are and they are going to have to recognize there ng to be some activity at that location and they are going to have to live w I too. You both need to live together. I prefer you make attempts to fix tl >h, bottle collection, locking off your parking lot and if there are people runnii Page 30 of 49 file: / /C:\Documents and Settings\ JCampbell \Desktop\mn08- 17- 06.htm 12/20/2006 �I Planning Commission Minutes 08/17/2006 and in the neighborhood, it will not be your issue. The other issue I have Type 75 liquor license was given because you folks, at some point, requests t as your customers need hard liquor with their food. So that was supposed ancillary as you wanted to bring other patrons in to get the food. That clearly what is happening here, its a bar after 11:00 p.m. r. Kolbly asked if the Alley Restaurant was a restaurant? He noted he conside a restaurant but that after 10:00 p.m. no food is being served there and a bar )ing on. Anytime a restaurant is open after 11:00 p.m., you are not a Denny's rictly serving food. The hours were given to us since day one, we have N ies to get in. There wasn't a problem then, but now all of a sudden there is. TI aeration has not changed. I offer full service meal all the way to closing. >ioner McDaniel noted the Type 75 license service of booze was to to the food and that is not the case. Chairman Eaton asked: • How long does the queue line get. •. How would you move the line to the 30th Street side if you need.. to keep doors open to the parking lot? • There is a condition on the ABC license that the line shall not extend 30th Street. If you did have the line originating at the 30th St. en would it get so long as to encroach along the alley? • Is the kitchen open until closing? Kolbly answered: 25 -30 people maximum. • It would be the south side open during the day and then closed at night the actual entry would by the fire line door and the line would run so towards the pier. I • The line is not starting on 30th Street, we will have to place a hole on patio with an entrance so it would run onto Newport Boulevard south. • Until we stop serving alcohol, those guys are cooking in the kitchen. comment was opened. Carson, owner of Rudy's Pub and Grill and property owner, noted: • He supports the development that has gone on in the Cannery Village. There are responsibilities of the developers in the area and it should enforced by the City with the loft like environment mixed use to m people aware of what they are moving into. Maybe there could be sc Page 31 of 49 file: / /C:\Documents and Settings\ JCampbell \Desktop\mn08- 17- 06.htm 12/20/2006 �(2 Planning Commission Minutes 08/17/2006 Page 32 of 49 sort of waiver, or signing off, that they are aware of the business operatic within the surrounding neighborhood that close at 2:00 a.m. and open 7:00 a.m. • The restaurant owners try to control people as they leave the establishr and we do our best job, but it is not always our patrons leaving establishments causing the problems. • It is tough to lay the blame on any one establishment. • I know that Balboa Imports is looking to become a loft environment behi us, which means our parking lot will open up directly to those new propos lofts and there is nothing that we can do when we let our patrons out keep them quiet. They are going to set off their car alarm noise and that always going to happen. There has to be some sort of leniency in deali with the public, dealing with the business owners and the fact that we we there first. I know I put a lot of money in my building and to have this fic two or three years down the road will be a difficult pill to swallow. John Dale, patron of The Newport Brewery, stated his support of this establishment, noting: ; • Family environment. • No way to quantify what responses that the Police Department has in that. area that are related to the bar itself. • They do a great job with the security at the door. • Food is served all night long. • It is a friendly atmosphere and people enjoy going there for drinks and it is one of the few places in Newport that has a patio. • This is the kind of business you want to keep in Newport Beach and is no the kind of thing that you should shut down because some people moved in next door to a bar. They knew it was there before they bought their place. Brian Kokus, local resident, noted: • There is a lot of traffic from other restaurants that goes through Newport Beach. • As a former restaurant manager, the stipulations brought up about education and addressing those issues are addressable and I believe that they will be addressed by the applicant. • I am pro business and running restaurants in any city after 11:00 p.m., food consumption goes down, that's just the way it is. • People choose to have a cocktail instead of food and we shouldn't restri file: / /C:\Documents and Settings\ JCampbel l \Desktop\mn08- 17- 06.htm 12/20/2006 Planning Commission Minutes 08/17/2006 that. If you restrict one restaurant by limiting what they can do, you setting a precedent and saying to other restaurants that when problems come up that you are going to handle it the same way. I think is a dangerous precedent. Markowitz, owner of a newer loft in the area, noted: . Loyalty of the business patrons is wonderful. As a business owner she appreciate it. . However, the business is not operating in a civilized manner. . None of us want to shut this down. . We are trying to bring some civilization to this establishment after a hour. • It is about business and I am happy that they are successful. • However, .there is violent verbal behavior late at night that.,, disturbs m. sleep. • There have been altercations between several of the neighbors and the owners as a result of sleep deprivation. • If you are tired, you get angry. The parking lot is out of control. . It is a great business, but I would like to see some compatibility neighbors. . Stop the juvenile fighting, and if the law has to be a catalyst for that, then be it. . Being drunk in a parking lot is illegal. When we have called the police, the time they get there, the patrons are gone. . She noted episodes of urination during the day. . She asked that the consumption of alcohol be controlled. • The queue line is loud and noisy. missioner McDaniel asked what time these problems are happening. . Markowitz answered it is after 11:00 p.m. and she had actually been at 1:30 a.m. by people in the parking lot last night. nmissioner McDaniel noted it couldn't be these people as the establishr ; closed at 11 last night so it couldn't have been their patrons. I am tryin what the problem is and I am not convinced from what you are saying that it at 1:30 that they were their customers because they were closed. Page 33 of 49 file: / /C: \Documents and Settings\ JCampbell \Desktop\mn08- 17- 06.htm 12/20/2006 ? u Planning Commission Minutes 08/17/2006 Markowitz noted clearly it was not associated with them but that she v rated because she is awakened so many times strictly from their parking queue line noise. I support the business, but can't we live together? Chairman Eaton asked how close she lived to the establishment. Are yor of the dividing line between their parking lot and the municipal parking lot? e do most of these disturbances take place? Markowitz answered she is adjacent to the parking lot. Absolutely, and irbances happen on their parking lot. Green, local resident noted: . There are many businesses in the area. . The disturbances come from all the people coming home from all the bars the neighborhood. . You can't put the blame on Jerry's business and the argument that this i stemming from the misuse of their permit is ridiculous. You have a bunch o drunk'people.coming home.: . He has watched from his patio the craziness of people going home and they come from all around except Jerry's place as it is closed down. McDaniel asked If they accumulate in the parking lot. Green answered they accumulate everywhere as they are parking in the on the streets; h has seen many fights on the sidewalks. Steed, local resident, business owner and a Cannery loft owner, noted: . The establishment is a nice one until after 9:00 p.m. . I did not realize when I bought my place that the Brewery operates as nightclub, they crank the music up and it is booze only. . The parking area is the launching pad for the whole peninsula. Where there more parking than at the Brewery. . I have tried to work with these people to come to some solution but it been futile. . At night it is completely out of control. My house is used as a urinal, the has been blood on my property and I have seen fights coming out of t bar. Sometimes it is so violent that people have climbed over my fence get away from the brawl. . 1 don't call the police anymore because it is futile. . The Brewery is operating outside their use permit. The first thing it says Page 34 of 49 file: / /C:\Documents and Settings\JCampbe111Desktop\ nn08- 17- 06.htm 12/20/2006 X15 Planning Commission Minutes 08/17/2006 Page 35 of 49 they are not going to create a nuisance in the parking lot, and they do. • They have been uncooperative. • The violence is unbelievable. Lenard, local resident, noted his support of the restaurant. He has brought ly there many times as the food is excellent and moderately priced. 1 ice and atmosphere are very friendly. He asked that it continue to operate. Stevens, employee of the restaurant and local resident, noted: • The waiters push food at the restaurant after 11:00 p.m. not only becau we are told to as it is good for sales, but for every ticket we are going want a higher bill because that means a higher tip. • Every person who sits down there is asked if they want something to eat, we let them know the full menu as opposed to being 'booze only.' We try to push as much food as we can. • I was the waiter on August 5th, where some patron was told at 10:45 p.m the kitchen wasn't open and we ended up with the half chicken salad at midnight. I don't recall saying that then, I might say it later for whatever .._ _. reason, but as I am there to make money I push sales as much as I can. • 1 have never seen 100 people in the parking lot and there certainly is blood anywhere. >sioner Toerge noted the testimony of the General Manager was that was always open. You just said you would say it was closed at 11:45 1 Stevens answered that was on him if he said it at all. When I am there, I food as much as possible. Callahan, local resident, speaking on behalf of her husband and his sti d they love the restaurant and when they get off work they go there late in 1 ing for food. If they don't have the opportunity to get there, I bring the food . The food is great and it is a great place to go with the family. mmissioner Toerge noted this is not how great the food is, it is about the imp; the neighborhood and the late hours. I appreciate the fact that the food mic good, and the servers are nice, but that is not the issue. I encourage you about the issue that is the noise that is created, the impact on t ghborhood and the ancillary nature of the food. Jusco, local resident and regular patron of the restaurant noted his support i establishment noting he has brought his family there many times. He state this is the kind of establishment that the City should be supporting and ni ping their hands. The Code officer and the detective both gave no specif lems at the Brewery. ABC couldn't find any problems, so what is the issu r than this Commission gave approval to build a home in a retail area that ju, )ens to be right behind the Brewery. Anybody living within a block of Newpo file: / /C:\Documents and SettingsU Campbell\Desktop\mn08- 17- 06.htm 12/20/2006 Planning Commission Minutes 08/17/2006 Page 36 of 49 evard is going to have noise. How you can point the finger at the Brewe say it is their fault, doesn't fly. This problem is all up and down Newpc evard and unless you come down on every bar in the City, you will still have lem. If you do it only to the Brewery you are discriminatory unless you do it /body else. This is a great establishment and I would hate to see anythir happen to it, they do a great job. audience became very vocal at this point. Harp noted this is a public meeting and all rules of decorum prevail. If anyc ates those, the officers will be happy to escort you from the premises. Plea the people speak. The Planning Commissioners are not here to respond :stions, they are the ones who get to ask the questions. imissioner McDaniel noted he has tried hard to listen to everyone, he will ig and it would be best to hear the issues, not the emotions. We have e decisions and so we ask questions to help us understand the situation to to make a good decision. Think about what you do to help yourselves wh make your presentation. We don't want to argue with anybody or cause a )le. Help us to get through the issues. Reese, noted that coriditiori 10 states the approval of this use permit is for a taurant/brewpub' and shall not be construed as the approval of a bar, cocktail' nge, or other use serving alcoholic beverages during hours not corresponding regular meal hours (food products sold or served incidentally to the sale or vice of alcohol beverages shall not be deemed as constituting regular. meal vice)... I did go there on August 5th and when I went there it was with the antion to see how it is being operated. The security guard met us at the door i was checking ID's. We asked why he was doing that and he said that after i0 p.m. the restaurant becomes a bar and that no one under2l is allowed in or y would lose their liquor license. The restaurant had patrons standing and loud sic was playing. We sat at a table and asked the waiter for food who told u kitchen was closed and the only thing to order was drinks. There were no ps, pretzels or popcorn being served. There were three security guards inside restaurant and another one was outside. It was obvious that this was acting a bar, not a restaurant. went on to say that if you look at all the paperwork, the Planning Commissior City Council were specific about the operation. Referring to hand writter e 127 of the staff report, he read the testimony of the then general manager rwn Needelman. He then spoke about the differences comparing testimony. suggested closing the restaurant at 11:00 p.m. as that is the normal closinc of a restaurant and that will solve the problems. eorge Schroeder, noted he was present at the meeting in 1993 when the origina =.rmit was received. The reason they got the permit was they were going to be s aer pub. He was present in 1999 when they applied for their liquor license. eferring to handwritten page 18, item 5, the restaurant/brewpub use is >mpatible with the surrounding commercial and nearby residential uses, then as always been residential uses in that area. It seems to be an impression the nce the new loft condos were built behind it on one street now there is sidential. There has always been residential use in the Cannery Village area. art of the original staff report was that they would operate in a way that would br lreeable with the nearby residential uses. I don't think it reasonable this mar file: / /C:\Documents and Settingsl JCampbell \Desktop\mn08- 17- 06.htm 12/20/2006 ° 1 t-i�l Planning Commission Minutes 08/17/2006 se his business. All that matters is are they complying with the permits the! ave gotten, and in my opinion they are not. The solution is they should close a 1:00 p.m. on Saturday and Friday nights, which should alleviate a lot of the roblems for the residents in the area. I have lived 18 years here and it is not fai i blame everything that is wrong on this one establishment, but we can look a ie permit they have and the conditions they agreed to. There are fistfights on the ireets after the bars are closed and often times I am awakened at 1 a.m. and it i; and to get back to sleep and it does affect your work day. This establishmen hould comply with the conditions of the permit. He continued talking about othe stablishments and noted that his survey resulted in closing times of 11:30 p.m e noted that this is a bar. Wetherhault, local resident, noted: . The 200 blocks of 28th, 29th and 30th Streets get pounded every with drunk activity. . A drunk has tried to break into his property. The police responded. • Fights have occurred where the police responded as well as 1 paramedics. • Various acts of sex, property damage, vulgar language go on.all times the night. . The point is these types of incidents continue to increase, as does number of people under the influence of alcohol The number of police to this area is extreme. . The residents are tired of this and if the patrons can not leave th establishments in a responsible manner and the bars can not control activity of their late night patrons, then the City needs to start laying these establishments. . This establishment went in as a restaurant and we would like to see continue as a restaurant but you need to do something to curb this activity. nmissioner McDaniel noted you mentioned a lot of things that have happened. i mentioned broken bottles but it is not normal that containers would be takes from this establishment necessarily. You haven't talked about any specifics. Wetherhault answered it is one of the impacts, it is another bar having act in the surrounding community. You can see the number of responses fl Police Department that are alcohol related. issioner McDaniel noted this is in general for the area, not specific to shment. He was answered. correct. Commission inquiry, Mr. Wetherhauft added that there is loitering in the pa s directly adjacent to the residents and you can see them coming from file: / /C:\Documents and SettingsU Campbell\Desktop\mn08- 17- 06.htm Page 37 of 49 12/20/2006 r} �� Planning Commission Minutes 08/17/2006 Bransiwaski, past resident of Cannery Village, noted everyone is tall ancillary use. The relevant definition of ancillary use comes from quart ation. How much booze versus how much food is sold quarterly. You c it down to days, hours, weekdays. You can in terms of discussion, but int definition is quarterly. So why are people talking about what happ :en the hours of 10 and 12 p.m. or what the characteristics might be? any Shepherdson, resident since 1967 stated when his place was built there wa; small gourmet market that is now the Brewery, so these things came after I wa: resident. The Brewery, Malarky's and Rudy's are not sidewalk cafes. I pass the rewery on Sunday mornings and it appears to have a nice ambience. Wha appens late at night is when our nightmare starts. These are full on drinkint >tablishments. The drunks late at night keep him awake and from hi: arspective the village atmosphere is being destroyed in his immediate vicinity b� e Brewery, Malarky's and Rudy's. The police can not respond when thing: appen. Rudy's on Sunday afternoons has live entertainment with a live PF rstem that sounds like it is in his garage and this is around 4-5 in the afternoon. is very difficult to take and has gotten the police involved. He asked that if the ity is pushing the mixed use and have businesses and living quarters togethe it to allow the hard liquor license, for these things to continue, it really isn' )ing to fit. We need help to maintain the Newport Beach village atmosphere. Weeda, business and property owner in Cannery Village, noted: • It is important to seek compliance with the use permit, that is what this about. . Just because this operator has operated outside the permit for years, does not validate or legitimize the actions. • When this use permit was applied for they were promoting themselves as restaurant and one of the reasons this was done is this was an amiable w. to get a permit. • If they had gone in and said they were going to operate as a boisteror nightclub at 11p.m., 12 and 1 a.m. on the weekends, they would ha) virtually no chance of getting the permit. Particularly since this district has high concentration of bars and history has shown that nightclubs have n fared so well down there. • He mentioned other nightclubs in the area and stated the problems of a night venue with alcohol. . This establishment was promoted as a restaurant because they could get permit as a restaurant. Now they are operating as a restaurant most of t1 time in the restaurant hours and as a full blown bar after 11 p.m. . The dear solution is to bring them into compliance and have them restaurant they promoted themselves to be, which many of the restaurants in the area have set a fine example by doing so. • Condition 6 - the net public area of the restaurant is limited to 1,500 Page 38 of 49 file: //C:1Documents and Settings\ JCampbell \Desktop\mn08- 17- 06.htm 12/20/2006 LAI Planning Commission Minutes 08/17/2006 fee daily. There is a bit of ambiguity the way this is written but we ha, contacted the Coastal Commission and it has been presented that it is daily restriction and is part of the condition of the Coastal Permit. That something that needs to be regulated and enforced by the City. . Condition 7 - The hours of operation Monday through Thursday are 6 to 11 p.m. and we think those should be the hours of operation on Friday anc Saturday as well to bring it into compliance with a restaurant type operation. . Condition 9 - The alcohol should be ancillary and not primary and should in conjunction with food. The operator promoted that they needed this order to make the food work, then use it for the food. After 9:00 p.m. tl most compelling testimony, 90% of the business is alcohol so that really in violation. . Condition 10 - It is pretty clear that the Planning Commission and the ( Council did not want to promote a nightclub or bar there. Again this g( back to this being a restaurant. The reason for the use permit is to ens things like this are being taken care of such as parking and land use. Th is a serious parking problem in the neighborhood when there are sr promotions during play off season or super bowl. That is what the Cow Commission was concerned about. Commission inquiry he noted that condition 6 needs to be enforced and doesr ad to be clarified. It is clear to me it is a daily condition that has been impose the Coastal Commission and needs to be enforced like all the conditions. IV ue is not with the operation and what it does or who the people are, my issue h the use permit and being in compliance like every other business like n siness that operates under a use permit. We are in compliance and we expe aryone else to be too. That is what a use permit is for. The late night creates of the problems and I think it can be organized by making them adhere to the B permit. I think this is;:really.an important thing and applies to late night a II. It is really about the parking and that is why that condition is imposed ar ads to be adhered to. It creates conflicts with other business owners during V rmal business hours and creates conflicts with other public people parking s Aley, resident, noted that she frequents the brewery. She stated she I been able to get food after 12 p.m. She has not seen any of thi s after 12:00 p.m. when she has been there that have been portrayed o speakers. Hogan, a manager in charge of the kitchen at the establishment, noted: . He was on duty the night of August 5th when two patrons came in and they were not allowed to get food. . That night there were 3 events in So Cal and we were the slowest on Saturday. Even with that, there is no way I would have shut the kite down. . We are supposed to be open and we are. file: / /C:\Documents and SettingsU Campbell\Desktop\mn08- 17- 06.htm Page 39 of 49 12/20/2006 Planning Commission Minutes 08/17/2006 �W . He is one of the last ones to leave and on the weekends leaves at 1:30 or and the parking lot is silent. Whatever happens after that is out of of control. We can lock the parking lot but we don't want to be liable and patrons need to leave their car and get a taxi, then we promote that. Thei is a municipal lot in the back that can be used as well. . There were 41 calls recorded for this procedure, how many of them during our business hours? . 65% of the arrests were due to alcohol, how many of them were on the of July and do they involve us in any way? . Nobody orders food from 10 p.m. to 2 a.m. After 2:00 a.m., Jack in the E is packed, there is a line wrapped around the building. Denny's is stand room only. . A crime to me sounds like a someone not reporting they are seeing a going on. Chairman Eaton asked are there times the kitchen is closed before the ing time' -of the entire premises. i Hogan answered no, the kitchen is open until the Brewery is closed.. You can ;r a steak at 12:15 a.m. At Commission inquiry, he noted that we can no e people to order food. Once they are out they are hungry, but they don' ally eat between 10:00 p.m. and 2:00 a.m. Moore, resident on the boardwalk for 30 years, noted: . He has an alley in the back of his home and he chose to live on boardwalk. . Drunks come down that alley every night. . They are there because there are a lot of bars in the area, not just of the Brewery. . He has been a patron of the Brewery and has eaten there after 11:00 p.m. . He has never seen any problems in the parking lot. Low, local resident, noted: . Referenced the work done by staff and the time put in by the Commission. . He presented a packet of communications, which had been distributed the Commissioners in their packets. . He presented copies of a CD of the May hearing. . There have been a lot of points of view of what people have seen or file://CADocuments and Settings\ JCampbell\Desktop\mn08- 17- 06.htm Page 40 of 49 12/20/2006 Planning Commission Minutes 08/17/2006 Page 41 of 49 seen. The issues that are in the communication that went to the City, I h heard no substantial testimony that proves any of the communications inaccurate. I submit that the complaints by the residents are what they and are part of the record. . We are talking about compatibility. We understand we live in a mixed use neighborhood and understand what that is. When we look to find equity o rights in that mixed use neighborhood, that is what we are talking about. Not whether they are good or bad, what's fair, what's right, what' appropriate, what isn't appropriate. That is why we ask you and we entrust upon you to make wise decisions on how to deal with our neighborhood. s Chairman Eaton asked: . Are you associated with the Cannery Village Concerned group? . How big is that group and how wide an area do they live in? . Are they primarily residents? . Do you see 'any relationship between. condition 6 and the late nigh nuisance problem or is that a case of the parking problem in the village as�a:,: ; whole? Low answered yes, he is a member. It is not so much as a forma mbership but that group probably has 50-60 persons that are involved and )ut 80% of those are inside the Cannery Village. There are a few who live on periphery of Cannery Village but they may be on the other side of Newport ilevard. Certainly it is dominated by folks who live or own property in the nnery Village. Specifically condition 6, as dictated by the Coastal Commission, s to free up parking during the day because they determined that the demand parking occurred during the hours of 8 a.m. to 6 p.m. They felt that after 6 p.m. )ple leave who may have been working there or go home from the beach and re is more parking there. Condition 6 does not address evening issues, I thin I the Coastal Commission was trying to make it available to the Brewery in the ;nings or other businesses or persons who use it in the evenings. There was iflict during the day when other persons were attempting to utilize that limited missioner McDaniel noted that the information that comes from this ,n't always get signed. I have a problem when people send correspo no signature, it doesn't' have a lot of credibility without the signatures. don't stand up and to be counted, I don't care. Low noted that everyone in that group are willing to be disclosed. ike Madlock, Vice President of Newport Beach Brewing Company since ceotion. noted: . The Type 75 license was not in existence when we first opened the bray and asked for the conditional use permit. What was allowable was just Type 22 which was a small beer manufacturer's license. The Type 75 c, file: / /C:\Documents and Settings\ JCampbell \Desktop\nm08- 17- 06.htm 12/2012006 Planning Commission Minutes 08/17/2006 along later due to the fact that there was some old laws prohibiting brev beer on the same premises where you could buy hard alcohol. It was available or we would have asked for it at the beginning. . The parking issue and closing off part of the restaurant, it was understanding that during the weekdays we left 13 spots for the of spaces above the brewery. We were under the impression that beca the offices were closed on the weekends, that was the reason why Coastal Commission was not pushing us on having any area closed during the weekends. mmissioner McDaniel, referring to the August 5th City Council minutes, it we ted that the Councilmembers clarified that this Type 75 license application we be able to provide for your eating customers. The ancillary thing keeps comin here. When I read these minutes, it appears to me you asked for this becaus ur customers are sophisticated and don't want to drink just a beer they me nt to have a cocktail and you were trying to increase your sale of food. Am anq in that? Madlock answered we wanted all higher sales. Of course we want to s food. We find that many customers that we had prior to getting the I hol lieense`were not frequenting out establishment. We were told that n ale wanted: martinis, margaritas ", 'etc.: Not all people want to order wine and that was the basis of why we went in for the Type 75 license. nmissioner McDaniel noted that it was stated that 'they wanted to complen it enhanced food, wine and special menu, and capture a more diverse clien acquiring this license. I read this so that you wanted to increase your i =s and sell them a margarita too, but you wanted this license to assist with d sale. Ancillary keeps coming up and we don't want you to be a bar, we v i to be a restaurant that serves drinks. Madlock noted we have never served a cover charge and we wanted to icholas Wilson, resident, noted that the testimony of most of the speakers ;ems the biggest problem is the parking lot. The majority of the comply mcerns noise and the parking lot. It is clearly unfair to single out one restaurs r the problems in that parking lot considering that is the largest public parking a proximity to seven restaurants within a two block radius. There is a shortal restaurants that do serve late in the evenings. There are those of us who 1 )t work 9 - 5 and we appreciate being able to get a beer and something to eat non - regular eating hour. Huffine, resident of Costa, noted her support of the restaurant noting this extended family and as a regular patron have seen the efforts put forth by t ers to be good neighbors. comment was closed. ssioner Henn referred to the Coastal Commission findings of 1993. 3e regarding how much of the restaurant is to be open during what d to be clear and consistent with the motivations with what I know to be file: / /C:\Documents and Settings\ JCampbell \Desktop\mn08- 17- 06.htm Page 42 of 49 a I � 12/20/2006 t;5 Planning Commission Minutes 08/17/2006 astal Commission. There is no wording whatsoever about daily, it says, s open before 5:00 p.m. (referring to the 1500 foot restriction). Doesn't say d asn't say Monday through Friday. I don't know how the City could interpret say Monday through Friday when the permit was issued. As far as I icerned that is clear to me. Toerge noted his agreement with Commissioner Henn. Chairman Eaton noted his agreement also. He added that the de riction does as well (referring to handwritten 86). It says daily. With regard comment on the 13 spaces on the upper floor, hand written page 63 the si )rt from the Coastal Commission notes that there are 43 spaces provid ng the day with the restriction and that provides for the 13 on the secc r. I don't think that related to not having the weekday restriction at all. If tl dition needs to be clarified my recommendation is to remove the referer iday through Friday reference. issioner McDaniel noted that he agrees. The Commission was in agreement. Commissioner McDaniel noted: . He has had to ask a lot of questions as the Commission handles zoning blood, vomit and fights. . The ancillary issue is clear and that the request for this Type 75 license alcohol was made so that the restaurant to better serve its restaur customers. . The Planning Commission and the City Council made it clear that this supposed to be a restaurant and I believe it was given to better help place service its customers for food. . There has been testimony from people who work there saying between 11 and 1 a.m. 90% of what goes on there is not food, it is alcohol; I can't make them eat, I'm okay with that, but the purpose of this condition and approval was so those people who did want to eat could have alcohol, not so that you could just serve alcohol. . Another employee said nobody eats between 11 and 2 a.m., Denny's isi busy, they eat after that. So this condition is not being served by this and is a bar between those hours as people don't eat there by their ov admission and they are saying food is not served because you can't maM people eat. . They are not serving food, they are serving alcohol so I think there is violation of that portion of the use permit. . Clearly the daily issue we just talked about. Nuisances - we have tried to pin down where those are coming from. file: / /C:\Documents and SetfngsVCampbell \Desktop \mn08- 17- 06.htm Page 43 of 49 12/20/2006 -? Planning Conunission Minutes 08/17/2006 Clearly they are not all coming from this place and so what do we do from zoning issue to try help solve that? That becomes more difficult for me. We can ask the operator to assist by covering the trash and they are to about doing that because they want to be a good neighbor. I'd like to at giving the owners some opportunity to fix these issues before we any significant changes to this. . I am not sure if it matters to me if they serve alcohol are doing it in a manner where it doesn't cause because that is what I have to talk about. or not as long public safety My view is to get some consensus how the operator voluntarily take care some of these issues. Maybe call this back in 6 months for a review and they are not operating responsibility than anything that they do after 11 p.r is not a restaurant and we should deal with it then. Henn, noted: Condition 10 - it seems this language was uniquely constructed. standard language for the provision.: of 6--hard. liquor license establishment that is primarily be a. restaurant? Campbell answered this language was uniquely crafted at that time. We do nilar condition today, in essence to define what the use is and what the use c. it be. One of the issues we are struggling with this condition is staff has look( these conditions and balanced the use based upon the entirety of the us rich is restaurant a majority of the time and a. bar as a minority of the time ar incipally it is a restaurant. Based upon that and that past practice is why v vggle with does this condition prohibit the bar after 11:00 p.m., and the answ we haven't looked at it in that light until now. 4r. Harp added that in talking with City Attorney Clauson, the intent was for this operate as a restaurant but serve alcohol and not as a bar. Looking at t anguage in condition 10 its says food products sold or served to the s; icidentally to the sale or service of alcohol beverages shall not be deemed onstituting regular meal service. It seems to me that provision is pretty clear a don't see any ambiguity some others see. issioner Toerge noted: . This situation is broken. You don't get the kind of resident appeal are getting tonight if something is not broken. . The Planning Commission is going to have to get use to these kinds discussion as more and more properties are zoned mixed use, although we do that we will probably get better about applying conditions. . There is a real conflict in these conditions because I do read condition that the serving of alcohol is to be done in correspondence with regi meal service hours. I've testimony about doctors and others who like to late and I understand that, but that is not regular meal service hours Page 44 of 49 file: / /C:\Documents and Settingsl JCampbell \Desktop\mn08- 17- 06.htm 12/20/2006 Planning Commission Minutes 08/17/2006 that is what we are talking about. What are those? I don't know, but th are not at midnight or at 11 p.m. or 1 a.m., that is not in my opinion. That very clear to me. We can debate the issue of ancillary as this Commissil has in the past reviewed a number of applications for alcoholic beveral service ancillary with food and I don't know of any of them that are op past 9:30 or 10:00 that we have approved where an establishment mic want to serve beer or wine or even a cocktail with their food. What I don't understand is how our predecessors could have allowed property to be open with this condition that alcoholic beverage could served with regular meal service hours. Harp noted when he had spoken with Ms. Clauson regarding this issue, hi lanation based on her recollection was that the intent of the operation was like Charlie's Chili or some of the other places that do serve food late at nigl I the intent was to have a meal and also have alcohol with it. When they g amended permit the minutes stated that the clientele shifted from people it twenties to people in their sixties. It is consistent with people coming in for al and having a drink with their meal. Page 45 of 49 ommissioner Toerge stated that merging conditions- 9 and 10 the ancillary - service of alcohol with food it makes it more clear: 1 definitely think'an amended to this use permit is due and we owe it to the residenti'. "this issue came before- . s in May and the issue is still here; there seems little done to address the issue and from my standpoint I think the ours of operation should be reduced and I am of sure 11:00 p.m. is the right one but I know no later is the right one if they wan to continue to serve alcohol with food. I will be recommending revocation unless- he owner wants to agree to some other conditions. ommissioner McDaniel asked about a 6 month time line. ommissioner Toerge answered no. Or. Harp stated they had met with the Newport Brewery counsel as well as their anagement directly after the last Planning Commission meeting. Basically the mphasis at that meeting was come up with a way to get control of your business n the interim, implement those procedures and come back to the Planning ommission with a plan. They haven't seem to really have done much in the Iasi 0+ days, so that is something to take into consideration. ommissioner Peotter asked about exhibit 5 that is the additional condition ffered by Newport Beach Brewing Company. Have they implemented any of hese, or is this something that they would do? Or. Campbell noted the security guards are there but there has been no security plan presented. The bottle recycling program has not been implemented, the rash dumpster area I have been told they are exploring the concept; the alcohol raining I have been told that is being done, but there is no proof to date; new ntrance, upon tonight's testimony it hasn't been implemented and the tow upon lose is something they are considering; and the back page is a suggestion to hange condition 9 and 10. No particular other improvements have been made. Commissioner Henn noted he is not interested in waiting another 6 months to se rr 7� file: / /C:\Documents and Settings\ JCampbell \Desktop\mn08- 17- 06.htm 12/20/2006 Planning Commission Minutes 08/17/2006 Page 46 of 49 there is voluntary improvements. If people want us to make the decision, I a ad to do that I suggest to continue this for one month to allow time for tl )grieved parties and the owners of the business to sit down and hammer out rlution that they can live with. I prefer not to make the decision, I prefer tl irties to come to some decisions. They might have tried that and failed and at is the case, I am glad to make the decision as part of the Commission. mmissioner Peotter noted that sitting across the table is not going to do n there appears to have been a lot of months of bad blood. I would be requ m to implement what the have said in exhibit 5 within the next 30 days. i give them 60 days with the implementation and then sit down with )rieved parties if it is working or not. Otherwise, chop their hours and be c h it. Henn noted exhibit 5 doesn't go far enough. ner Peotter noted we can add to it such as an no age restriction, etc. followed on some additional implementation procedures. Vice Chairman Eaton noted we should not try and do something tonight or at the next meeting because the Our Lady Queen of Angels -will be at the next. meeting: He agrees to a continuance for a month. Both sides ari&city'staff'shoufd meet tc sea what agreement there can be in terms of meaningful "i'mprovements but for the staff to come back to the Commission and present us with what we can 'tlo in modifying conditions then have a review in 6 months to see how those modified conditions are working. The other reason not continue the whole thing for 6 months is that either side may be anxious to get this up to City Council and we hould not stall them for that period of time. During this month we need to structure some revisions to the conditions that we might have a shot at working for he neighborhood. Cutting back the hours is the drastic solution that we would hope to avoid. I would like to have staff look at the certification programs have component that . provide guidance to employees when to stop serving to individuals when they have become too drunk for their own good. If it does, how an we get verification that the employees have gone through this training and an we get some assurance from managerial employees that they have instructed heir staff to implement that. The ultimate problem seems to be outside the remises. The problem inside the premises they are containing and the neighbors are not as affected. Some of the behavior outside the premises is probably no coming from the patrons of this premise unless they are going on to other bar because at 2:00 a.m., I am sure patrons of this establishment are probably gone. It is a neighborhood problem of which this establishment may be contributing a portion and I would like to see if there is a way to get something back to us in a month that will offer some revised conditions including specifically condition 6 and something specifically stating the kitchen shall remain open the entire time and ay to get the employee alcohol training implemented. Craig Frizzell, Detective Division Commander of the Newport Beach Police )artment, noted that there are several types of training programs. I know the ling but I don't know if there is any type of certification, but we can find out. can work this out with the owner within a month's time. ommissioner Henn noted that the neighborhood groups need to be involved uring this time. He noted that the people who own and operate this restauran re not mal- intent. I think they are trying to operate a good business. I also don' file: / /C:\Documents and Settings\ JCampbell\Desktop\mn08- 17- 06.htm 12/20/2006 3 Planning Commission Minutes 08/17/2006 Page 47 of 49 nk that the neighbors that are aggrieved are blowing up their claims routine re to make it seem much worse than it is, I don't believe that either. In fact, 311y don't care as our function is not to find out who is telling the truth and who aggerating; our function is to try and find out what the use permit is and wheth( restaurant is being operated in accordance with that and therefore whether th ink people in the parking lot are patrons of this restaurant isn't the importai ;ue. The important issue is what is the use permit and is it being operate rrectly in accordance with it. I want to make sure that everyone understanc A this is an objective decision before us. The testimony tonight is not german the decision. Harp noted that on the motion it needs to be clarified as to the manner I this to come back to you as there are different procedures for modific; revocation. Chairman Eaton noted he is talking about a modification, not a ommissioner Toerge noted he does not want to take revocation off the table, to ave theowners act. He prefers to continue the hearing and keep the option:. peke r Harp noted'that revocation is not on the table but if you want to add it, §taffwill eed to comply: with the procedures set forth for revocation. By opening up the oor for revocation, does not mean you have to take that action. We can combine It with modification, additional ° terms and revocation. ommissioner Toerge noted he is not prepared to make a motion to revoke th icense today, but he might be next time. It is an option we have and it should b aintained and it should be there. This is a serious issue and we need It aintain that option as I think it will motivate the parties to reach the resolution. I m not sure we will get there if revocation is not an option. missioner Peotter clarified that you are suggesting that this item be continue brought back with revised conditions that are hammered out by staff who wi had input by the neighbors and the owners. ;missioner Toerge noted his agreement; however, the meeting should b ,ed in such a way that if the information we get at that meeting compels one c B of us to revoke it that we have the opportunity to make that motion. Wh; are saying is the right tact, but it presupposes that there is going to be som promise and I am not convinced there is. If there is no compromise then to revoke. ing a brief discussion it was decided that revocation should also be on for the next meeting. Alon was made by Commissioner Toerge to continue this item to at and ask that the item be noticed in such a way that we have the engage in further discussion to make modifications to the use pei ioke the amended use permit that granted them the right for this ;ohol sales on the premises. file: / /C: \Documents and Settings\ 7Campbell \Desktop\nm08- 17- 06.htm 0. 12/20/2006 Planning Commission Minutes 08/17/2006 Harp affirmed the Commission wanted staff to prepare potential or additional conditions. Chairman Eaton agreed and added that there was consensus that Jay provision be removed from condition 6. maker of the motion agreed to add that to the motion. issioner Henn noted that the neighborhood people should not take this blanche to be intransigent and unwilling to discuss and unwilling omise on their positions either. What the Commission is looking for is omise and I think that is included on all parties. Peotter, None Cole ::a.., .City Council Follow -up - Ms. Wood noted that the agenda for August ,was the City Council initiated an amendment to the Planned Communitj I§elc6urt to prohibit additional subdivisions, which will be coming to Planning Commission. b. Report from Planning Commission's representative to the Econc Development Committee - Commissioner Henn noted the topic discussion was the cost related to Greenlight II. EDC will be recommenc to the Council a revised summary of the associated costs. C. Report from the Planning Commission's representative to the Local Coasta Committee - Commissioner Toerge noted at the meeting of August 14th the approach in terms of the volume of the information included in the Implementation Plan were discussed. We decided we needed a summer of how the items serve each of the policies in the Local Coastal Plan itself. We discussed the topic of the Corona del Mar bluff development guidelines which is significantly different than other bluffs in the City. d. Matters which a Planning Commissioner would like staff to report on at subsequent meeting - Vice Chairman Eaton asked when the topic of tl rules and procedures of the Planning Commission will be up for review ai whether the Zoning Committee will be reactivated. Ms. Wood noted It staff is working on the rules and procedures and that the Zoning Committ may be reactivated when the General Plan is approved. e. Matters which a Planning Commissioner may wish to place on a agenda for action and staff report - none. Page 48 of 49 file:HC:\Documents and Settingsl JCampbell \Desktop\mn08- 17- 06.htm 12/20/2006 Exhibit No. 2 Code Enforcement memorandum Eixh;b� No. Z code E. CAI Wwp"'Ir F*#%MrAvw% August 17, 2006 Newport Beach Planning Commission Subject: Newport Beach Brewing Company 2920 Newport Blvd Newport Beach, CA 92263 On January 26, 2006, I received a complaint letter from residents of Cannery Village regarding the Newport Beach Brewing Company (NBBC). In the letter, they expressed their concern that NBBC was violating conditions in its use permit. The complaints filed were in regards to: (1) the NBBC patrons' behavior in the parking lot atnight and early morning; (2) nuisance(s) from noise caused by property maintenance activities; and (3) full use of the restaurant before 5 PM. Based on these complaints, a code enforcement case was opened and an investigation was conducted to determine what/if any violations did exist. In response to the concerns that the patrons were extremely loud and noisy, I made three visits to NBBC at night. On the first night, February 2, 2006, I arrived at approximately 9:45 PM. I walked around the parking lot which was relatively clean. I walked around the bar to listen for music or voices coming from the bar. No music or voices could be heard from the front of the bat. Voices could be faintly heard coming from the patio area. There was no cue -up line when I entered and when I exited the NBBC. I stayed for approximately a half -hour. I went back on February 4, 2006 arriving at approximately 9:45 PM. My observations were the same as the prior visit. The parking lot was clean and relatively quiet. There was no cue -up line when I arrived. The bar, however, was much busier than my first visit. Once again, I stayed for approximately a half hour. I made a final visit on February 10'`, 2006. On this night, there were patrons in the cue -up line that were quite noisy. There were also 2 female patrons in the parking lot screaming at each other. I spoke with the on -duty manager, Jerry Kolbly, and discussed with him my concerns about the noise in the parking lots coming from his patrons. He agreed to place extra security in the parking lot and advise individuals in the parking lot to keep their voices down. I also discussed some of the other complaints from the letter with Jerry. We discussed the trash in the parking lot, noise from the bar, and the early morning property maintenance. Jerry agreed to have his staff monitor the parking lot for trash, clear patrons from the parking lot after the bar closed, keep the door to the bar closed so that noise volume would be reduced, and speak to the individuals who were doing clean up to quiet down so as not to disturb the neighbors. Since that conversation with Jerry, I have only received one other complaint about noise from people in the parking lot. The complaint was related to drunks screaming in the alley way in the early morning hours. In response to the complaints of noise from property maintenance activities, I spoke with Kolbly again and asked him to have deliveries made after 8:00 AM. I also asked him to have property maintenance activities conducted after 8:00 AM. He agreed to do so. After that conversation, I did receive complaints along with photos of early morning deliveries and bottles being picked up. After receiving the January 2006 letter, I also began to make regular inspections of the parking lot and surrounding area to determine if litter and trash were being left. I drove by the parking lot as part of my daily visual drive -thru of Balboa Peninsula. It was my determination that the parking lot and surrounding areas were kept relatively clean. I did advise Kolbly to have his staff monitor the parking lot, especially at night and early morning and the trash enclosure. As noted above, I had previously mentioned this to Mr. Kolbly when speaking to him on the night of February 10v' I brought the issue up to ensure Mr. Kolbly was aware of the complaint and so that he could continue to monitor the parking lot and trash enclosure. Mr. Kolbly stated that he had staff already monitoring the parking lot but he would speak with them to make sure they kept a closer watch. Lastly, it was noted in the complaint letter that the NBBC operates in a net public area greater than 1,500 square feet prior to 5 PM daily. I made a visit to the NBBC on February 22 "a and observed that a portion of the bar was cordoned off and closed. On that day, the portion of the bar that was closed off was just to the right of the patio. I reported this observation to Jim Campbell, Newport Beach Planning Department. Matt Cosylion Code & Water Quality Enforcement Officer cc: Jim Campbell, Senior Planner Aaron Harp, Assistant City Attorney Jerry Kolbly, NBBC u!� Exhibit No. 3 Police Department Investigation report Erh�bdO� tjo.3 TdOb iceD�.Maws#; 9a '4;er� � CITY OF NEWPORT BEACH POLICE DEPARTMENT November 3, 2006 TO: Sgt. R. Vallercamp FROM: Detective D. Stark SUBJECT: INVESTIGATIVE REPORT - NEWPORT BEACH BREWING COMPANY Case Initiation: On 8/22/06, Assistant City Attorney Aaron Harp asked NBPD to assist his office and the Planning Commission in regards to the Newport Beach Brewing Company (hereinafter referred to as NBBC). Mr. Harp identified nine different questions regarding the NBBC abiding by their Conditional Use Permit (CUP) and asked the Police Department to investigate. Investigative Results: The Special Investigations Unit of the NBPD reviewed Patrol related calls from the CAD System and coordinated with Patrol Officers and shift supervisors to increase their awareness and the need for documentation of incidents that involve the NBBC. There have not been any Patrol related problems noted in the last two months. Most Patrol Officers commented that the NBBC is rarely a problem. Undercover detectives from Special Investigations visited the NBBC and conducted surveillances of the surrounding area on six separate occasions to help answer the following questions. Questions l - 9: Question #1 dealt with the possibility of the NBBC being operated as a bar (rather than a restaurant) on specific days and at specific times, especially between 2200 hours and 0100 hours on Friday and Saturday Nights. The answer to this is very subjective and probably inconclusive. The NBBC did have on- duty security employees working. Security employees were present the entire time during each evening visit by Detectives (8- 31 -06, 9 -1 -06, 9 -2 -06, 9 -3 -06, 9 -8 -06) One security employee was monitoring the entrance and one or two others were circulating throughout the restaurant. On 9/8/06, we had a Police Cadet who was 20 years old attempt to enter by herself after 2200 I hours. When the door security employee learned she was under 21, he apologized and said, "We don't let anyone under 21 inside after 2200 hours unless you're with a parent or other adult." The staff kept the crowd/occupancy at a reasonable level. Even after waiting in line to enter (after 2300 hours on a Friday night), we found several tables available to sit at. They served their full menu (appetizers and entrees) until they closed at midnight. They did not have live entertainment, DJ's or dancing. Question #2 inquired about the noise being generated by the restaurant. Investigating officers observed the entire exterior perimeter of the restaurant throughout the evening and night on five separate dates (Thursday, 8/31/06, Friday, 9/1/06, Saturday, 9/2/06, Sunday, 9/3/06, and Friday, 9/8/06). The only noise came from the patio area which bordered Newport Boulevard. The noise was from patrons talking (not from amplified music). The noise would be drowned out when multiple cars passed the location. The rear or bay side of the NBBC remained quiet and trouble free during the restaurant's hours of operation. The only door that remained open was the patio door which faced Newport Boulevard. All windows were kept closed and on one occasion (9/2/06 at about 2200 hours); when a patron opened the window, the security staff immediately responded and closed the. window. The rear (bay side) doors, when being used as the entrance /exit, were kept closed except during ingress /egress of patrons. Question #3 asked if the NBBC had the proper signs posted inside the establishment. The Occupancy was clearly displayed on a large sign above the rear door (facing the bay) reading "Occupancy 160." This number is consistent with the occupancy certificate in our ABC file. Additionally, there were several signs clearly posted on the interior, side and rear of the exterior, requesting quiet and respect for the neighbors. Question #4 dealt with the exterior of the NBBC including the parking lot, sidewalk, alleys and surrounding areas. None of the detectives noticed any significant noise or disturbances attributable to the NBBC. During the late night hours, after the NBBC was closed, we noted several groups of people returning to their cars from the area of the intersection at Newport Boulevard and 30th Street. These people would often have loud conversations, however, there was no loitering, drinking, public urination or other activities observed. The NBBC security staff was observed outside, monitoring their portion of the parking lot during and after closing time with a flashlight. .Considering the exterior signs, closed windows, movement of the entrance after hours and patrolling of the rear parking lot, I would say that the NBBC is making a concerted effort to reduce noise and related problems for their neighbors. Question #5 asked if the Brewery Employees had received the proper certifications. On 9/6/06, Alcohol Beverage Control (ABC) Investigator D. Shaver gave LEAD Program training (Licensee Education on Alcohol and Drugs) to 17 NBBC employees. The LEAD (05 Program is a voluntary prevention and education program for California retail alcohol sales licensees, their employees and applicants. The program length is 3 1/2 hours and the mission is to provide training on alcohol responsibility and the law. Another training class was offered on October 4th and 2 more employees attended. The 3 remaining employees who have not attended this class have been taken off the schedule until they complete the training. Question #6 dealt with "Calls For Service." Since previous reports have been compiled prior to 8/10/06, this report will address calls after 8/10/06. Five calls for service were associated with the NBBC address from 8/10/06 to the present. One was a traffic stop by a Patrol Officer (unrelated to the NBBC). Another was a noise complaint by an anonymous caller which Patrol Officers cleared as unfounded. On 8/19/06 at about 0058 hours, Jill Marcowitz called to report a large group of people yelling and screaming in the parking lot. Patrol Officers were dispatched at 0124 hours and arrived a minute later. The Officers cleared after advising that the NBBC was shutting down. It is unknown if the disturbance was still occurring when officers arrived. On 9/12/06 at. about 0337 hours, Bruce Low called in a noise disturbance regarding a grease recovery vehicle that was parked in the alley on the east side of the N13BC and actively pumping out grease. A Patrol Officer responded at 0339 hours. I spoke with the responding officer (Dugan) who explained that he arrived as the grease truck had finished pumping. The noise made by the truck when he was present was minimal. Officer Dugan remained for about 4 minutes until the truck left. I was also forwarded an email regarding this disturbance written by resident Bruce Low which included photos. On 9/16/06, an anonymous male cell phone caller reported being assaulted by NBBC security. Patrol Officers responded and no assault was substantiated. The units observed that the caller was intoxicated and he left the area. The Officers cleared the scene logging an assist. Question #7 asks about the line to enter the restaurant. On the days when investigators entered the NBBC before 2130 hours, the entrance was on the bay /parking lot side of the restaurant. Depending on the night, sometime around 2130 to 2200 hours, the entrance would be moved to the Newport Boulevard side of the restaurant. Signs would be placed on the rear entrance doors telling patrons that the entrance was at the front of the building. They would also place a three foot tall folding sign on the ground in front of the rear entrance saying the same thing. Signs would also be affixed to the inside of the rear doors saying, "NOT AN EXIT." The NBBC would place line delineators along Newport Boulevard to organize and control patrons waiting in line. A restaurant security employee was at the front of the line monitoring the occupancy and checking ID's. Lines were observed on several occasions, usually after 2300 hours on Friday and Saturday nights. On a Friday night (9/8/06) at 2300 hours, I waited in line for about five minutes prior to entry. When I was let inside, there were still three unoccupied tables. W, At Question #8 asked if litter was present in the parking lot. Undercover detectives visited the NBBC six times and numerous parking lot and perimeter checks were conducted. No one observed any trash or other discarded items that would draw their attention. Question #9 addressed CUP condition #6, a provision that a portion of the restaurant remain closed prior to 5 p.m. (reduction in Net Public Area). Detectives also visited the NBBC during the lunch hour on Wednesday, 8/30/06 at about 1130 hours. They noted that the area in the restaurant adjacent to the brew kettles was the only section open for the small lunch crowd. The other areas of the bar and restaurant were closed. On Sunda 10/08/06, Detectives visited the NBBC, arriving at about 1230 hours. They noted that the restaurant was completely open with patrons occupying tables in all areas (no sections were closed off). When they arrived, they estimated that the restaurant was 70% full and when they left at 1430 hours it was 90% full. The. primary attraction that day was NFL Football. The rear, parking lot entrance doors remained closed when not being used foringress/egress and no unreasonable noise was emanating from the establishment. CONDITIONS: Q Exhibit No. 4 Recommended changes to the conditions of approval The proposed development shall be in substantial conformance with the approved site plan, floor plan and elevations, except as noted below. ISM M Me HM M - .. ._. 1. NUMNSW The applicant shall provide a minimum of one parking space for each 50 square feet of net public area before 5:00 p.m. and one parking space for each 40 square feet of net public area after 5:00 p.m. in conjunction with the restaurant/brewpub. 5. The property owner shall pay for 29 in -lieu parking spaces in the Cannery Village Municipal Parking Lot on an annual basis for the nighttime operation (after 5:00 p.m.) of the restaurant/brewpub use as agreed upon by the Sales Agreement between the City of Newport Beach and the property owner. 6. The net public area of the restaurant/brewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 p.m.) shall be limited to 1,500 square feet. The balance of the net public area shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m. daily. 7. The hours of operation for the restaurant/brewpub shall be limited to the hours between 6:00 a.m. and 11:00 p.m. Sunday through Thursday and between 6:00 a.m. and 1:00 a.m. on Friday and Saturday. 8. All employees shall park either in the privately owned off -site parking area or in one of the municipal parking lots in the area. The operation of the brewery and the service of alcoholic beverages shall be ancillary to the pr4mary -food service operation of the restaurant (e.g. the brewery and the service of alcoholic beveraqes may not be conducted without the concurrent operation of the restaurant during all hours the use is open for business). The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The operator shall at all times maintain records which reflect separately the gross sales of food and the gross sales of alcoholic beverages. Said records shall be kept no less frequently that on a guarterly basis and shall be made available to the Planning Director on demand. 10. The r�in_cipal use authorized by this Use Permit is The approval of this U69 PeFmi in for -a restaurant/brewpub. The accessory operation of a bar is permitted provided that the kitchen remains open for the service of meals and that a full menu is provided. This Use Permit aPA -shall not be construed as the approval of a bar, cocktail lounge, or other use with the principal purpose of serving alcoholic beverages during hours not corresponding to regular meal service hours (feed pF9duGts sold or seFved OAGideRtally to the sale or service of alGoholiG beverages she" not be deemed as GGn6titUtiRg ular meal e) nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and /or. dancing. The kitchen of the restaurant/brewpub shall be in operation to serve meals at all times that the business is open. A full meal menu (including the service of those meals ordered) shall be made available. Menus and condiments shall be available at the tables at all times. 11. No outdoor loudspeakers or paging system shall be permitted in conjunction with the proposed location. 12. A washout area for refuse containers shall be provided in such a way as to allow direct drainage into the sewer system and not into the Bay or storm drains, unless otherwise approved by the Building Department. 13. Kitchen exhaust fans shall be designed to control smoke and odor to the satisfaction of the Building Department. 14. All mechanical equipment and trash areas shall be screened from surrounding public streets and alleys and adjoining properties. The existing trash enclosure self - closing and self - locking for security. 15. DeletedThe development standaFds regarding ­­­ the restaurant site utilities and undeFground shall be waived. 16. Should prerecorded music be played within the restaurant facility, such music shall be confined to the interior of the building, and all doors and windows shall be kept closed while such music is played. 17. A special events permit is required for any event or promotional activity outside the normal operational characteristics of this restaurant business that would attract large crowds, involve the sale of alcoholic beverages, include any form of on -site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. 18. Should this business be sold or otherwise come under different ownership, any future owners or assignees shall be noted of the conditions of this approval by either the current business owner, property owner or the leasing company. 19. The parking lot entrance to the building shall not be used as an entrance after 9PM when a queue forms. 20. The operator shall discourage loitering on site at all times the establishment is open or emplovees or owners are present. 22. The applicant shall prepare a detailed security operations plan within 45 days of approval of this amendment to the Use Permit. The security operations plan shall be subject to the review and approval of the Police Department and Planning operations plan, securitv shall be provided whenever necessary and a minimum of 1 hour after the posted closing hour. 23. Deliveries and property maintenance activities shall not be conducted between 8PM and 8AM daily. Property maintenance activities include, and is not limited to trash pickup, recycling disposal and pickup, grease trap cleaning, cooking oil recycling, brewery servicing, deliveries cleaning or general building maintenance. 24. The use shall maintain a Tvpe 23 or a Type 75 license to sell alcoholic beverages from the State Department of Alcoholic Beverage Control. No other license type shall be permitted without review and approval by the Planning Commission. 25. Live entertainment and dancing shall be prohibited without an amendment to this Use Permit and .a Live Entertainment Permit and/or a Cafe Dance permit issued by the City Manager's Office. 26. The operator shall not prohibit persons under the age of 21 from entering the establishment. determination that the use directly causes or is contributing to conditions found to be detrimental to the community (this provision shall not be construed to diminish the City's ability to enforce this use Permit or anv aspect of the Municipal Code). STANDARD CITY REQUIREMENTS: A. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. B. Signs and displays shall not obstruct the sales counter, cash register, seller and customer from view from the exterior. C. Loitering, open container, and other signs specified by the Alcoholic Beverage Control Act shall be posted as required by the ABC. -7p D. The applicant shall take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, alleys and areas surrounding the alcoholic beverage outlet and adjacent properties must be taken during business hours if directly related to the patrons of the subject alcoholic beverage outlet. E. The exterior of the alcoholic beverage outlet shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. F. All owners, managers and employees serving and /or selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. To qualify to meet the requirements of this section a certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service or other certifying /licensing body, which the State may designate. The operator shall provide proof of completion for all owners, managers and employees within 30 days of the approval of this amendment and new employees shall successfully complete the training within 30 days of initially starting work.The establishment shall comply with the requarement,,-o ';tion within 180 day of the issuanee of the Ge G. The project will shall comply with the provisions of Chapter 14.30 of the Newport Beach Municipal Code for commercial kitchen grease disposal. H. All signs shall conform to the provisions of Chapter 20.67 of the Municipal Code. This Use Permit for an alcoholic beverage outlet granted in accordance with the terms of this chapter shall expire within 12 months from the date of approval unless a license has been issued or transferred by the California State Department of Alcoholic Beverage Control prior to the expiration date. Coastal Commission approval shall be obtained prior to issuance of any building perm its. K. The Planning Commission may add to or modify conditions of approval to this Use Permit upon a determination that this Use Permit causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. —1 �elr3- Exhibit No. 5 Draft Resolution (to be submitted under separate cover) 72, CITY OF NEWPORT BEACH MEMORANDUM DATE: December 29, 2006 TO: HONORABLE CHAIRMAN AND MEMBERS OF THE PLANNING COMMISSION FROM: Planning Director SUBJECT: Newport Beach Brewing Company Planning Department staff met with the operator of the Newport Beach Brewing Company and his attorney this week to.work out language on conditions of approval that formalize operating changes ,that have already been made, or will be made, to minimize impacts on nearby residents. The proposed language changes are shown in the attached draft conditions of approval. A draft Planning Commission resolution incorporating these conditions of approval will be provided prior to the January 9, 2007, meeting. Attachment -75 CONDITIONS: The proposed development shall be in substantial conformance with the approved site plan, floor plan and elevations, except as noted below. 3. The applicant shall provide a minimum of one parking space for each 50 square feet of net public area before 5:00 p.m. and one parking space for each 40 square feet of net public area after 5:00 p.m. in conjunction with the restaurant/brewpub. 9 r�'. 7r' -- __-_ •__ -.._�. °� 5. The property owner shall pay for 29 in -lieu parking spaces in the Cannery Village Municipal Parking Lot on an annual basis for the nighttime operation (after 5:00 p.m.) of the restaurant/brewpub use as agreed upon by the Sales Agreement between the City of Newport Beach and the property owner. 6. The net public area of the restaurant/brewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 p.m.) shall be limited to 1,500 square feet. The balance of the net public area shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m. daily. 7. The hours of operation for the restaurant/brewpub shall be limited to the hours between 6:00 a.m. and 11:00 p.m. Sunday through Thursday and between 6:00 a.m. and 1:00 a.m. on Friday and Saturday. 8. All employees shall park either in the privately owned off -site parking area or in one of the municipal parking lots in the area. 9. The operation of the brewery and the service of alcoholic beverages shall be ancillary to the pfimay food service operation of the restaurant (e.g. the brewery and the service of alcoholic beverages may not be conducted without the concurrent operation of the restaurant during all hours the use is _11-1 shall at all times maintain records which reflect separatelv the gross sales of food and the gross sales of alcoholic beverages. Said records shall be kept no less frequently that on a quarterly basis and shall be made available to the Planning Director upon request in conjunction with the Planning Commission's review of this Use Permit for alleged violations of conditions. 10. The principal use authorized by this Use Permit is rl,° °^^rn, -f this 1 lc° Permit Oq ,oTa restaurant/brewpub. The accessory operation of a bar is permitted provided that the kitchen remains open for the service of meals and that a full menu is provided. This Use Permit a4wl-shall not be construed as the approval of a bar, cocktail lounge, or other use with the principal purpose of serving alcoholic beverages during hours not corresponding to regular meal service hours r°^nlar meal 6°^.,^°) nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and /or dancing. The kitchen of the restaurant/brewpub shall be in operation to serve meals at all times that the business is open. A full meal menu 11. No outdoor loudspeakers or paging system shall be permitted in conjunction with the proposed location. 12. A washout area for refuse containers shall be provided in such a way as to allow direct drainage into the sewer system and not into the Bay or storm drains, unless otherwise approved by the Building Department. 13. Kitchen exhaust fans shall be designed to control smoke and odor to the satisfaction of the Building Department. 14. All mechanical equipment and trash areas shall be screened from surrounding public streets and alleys and adjoining properties. The existing trash enclosure shall be covered and the doors or -gates to the enclosure shall be modified to be self - closing and self - locking for security. 15. Deleted restaurant site and undeFgFG'_Ind_ lltiliti9l; shall be waived. 16. Should prerecorded music be played within the restaurant facility, such music shall be confined to the interior of the building, and all doors and windows shall be kept closed while such music is played. 17. A special events permit is required for any event or promotional activity outside the normal operational characteristics of this restaurant business that would attract large crowds, involve the sale of alcoholic beverages, include any form of on -site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. --75 18. Should this business be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing company. 19. The parking lot entrance to the building shall not be used as an entrance after 9PM when a queue forms. 20. The operator shall discourage loitering on site at all times the establishment is open or employees or owners are present. establishment. 22. The applicant shall prepare a detailed securitv operations and property methods and personnel necessary to control patron activitv on and abutting the project site to minimize or avoid land use conflicts. When security services are reauired pursuant to the plan, security shall be provided cleaning or general building maintenance. 23. Deliveries and exterior property maintenance activities shall not be conducted between 8PM and 8AM daily. 24. The use shall maintain a Type 23 or a Type 75 license to sell alcoholic Planning Commission. 25. Live entertainment and dancing shall be prohibited without an amendment to this Use Permit and a Live Entertainment Permit and/or a Cafe Dance Permit issued by the City Manager's Office. 26. This Use Permit shall be reviewed by the Planning Commission at a noticed Public hearing if complaints of alleged violations of the conditions are STANDARD CITY REQUIREMENTS: A. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. B. Signs and displays shall not obstruct the sales counter, cash register, seller and customer from view from the exterior. C. Loitering, open container, and other signs specified by the Alcoholic Beverage Control Act shall be posted as required by the ABC. D. The applicant shall take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, alleys and areas surrounding the alcoholic beverage outlet and adjacent properties must be taken during business hours if directly related to the patrons of the subject alcoholic beverage outlet. E. The exterior of the alcoholic beverage outlet shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. F. All owners, managers and employees serving and /or selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. To qualify to meet the requirements of this section a certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service or other certifying /licensing body, which the State may designate. The operator shall provide proof of completion for all amendment and new employees shall successfully complete the training within 30 days of initially starting work.The establishment �k °ll .Aft, the requiFernents of this sectia--n iNothon 1.60 days of the isguanne �f the certificate of occupancy. G. The project w41--shall comply with the provisions of Chapter 14.30 of the Newport Beach Municipal Code for commercial kitchen grease disposal. H. All signs shall conform to the provisions of Chapter 20.67 of the Municipal Code. This Use Permit for an alcoholic beverage outlet granted in accordance with the terms of this chapter shall expire within 12 months from the date of approval unless a license has been issued or transferred by the California State Department of Alcoholic Beverage Control prior to the expiration date. Coastal Commission approval shall be obtained prior to issuance of any building permits. 77 K. The Planning Commission may add this Use Permit upon a determinatio n is detrimental to the health, safety, welfare of the community. to or modify conditions of approval to that this Use Permit causes injury, or peace, morals, comfort, or general '7X Item 3 Item 3 Minutes from January 4, 2007 7q F i OR Planning Commission Minutes 01/04/2007 Peotter asked about Condition 36 with approval by the City Cou cuts. answered it would not be approved by City Council but would the City Traffic Engineer. r. Lepo sugksted adding, 'or appropriate approval authority.' issioner E n pointed out that he believed that the condition was origit d correctly, a there is a City Council policy to the effect that City Cot ial is required new driveway encroachments that remove street par4 there are alleys vailable to provide parking and vehicular access to ties involved. Murillo added that this c dition was specifically at the request of the ks Department for City Cou it approval. Peotter asked aboutXondition 27, stating it seems redundant. Murillo noted there are altematives the applicant comply with standard issues that the Building Department as fire sprinklers. We are requiri g Code and so I highlighted some :ussion ensued on the responsibility that th applicant will have to notify tnt when they are entering a lease and that kthe applicant would events the property, he would have to disclose and re rd as a deed restriction. ;ed that this disclosure will be part of the lease. on was made by Commissioner McDaniel and sec ded by Commissioi kins to approve Use Permit No. 2006 -001, Modification ermit No. 2006 -0 Line Adjustment No. 2006 -010 subject to findings d Conditions s ification that a new drafted condition that reflects a notifi on to tenants as potential buyers. Toerge noted he supports this project with the modifications to ommissioner Eaton noted he would not support this motion as this pro ct appropriate. The General Plan has been changed and now says residential permitted in the central portions of lots in the Cannery Village. Trying )mbine residential with commercial creates several problems such as I odification request on the FAR, the modification request on the parking in fn id creates the fact that the driveway cuts have to go to City Council and all at because the standards don't work. The compatibility problem with Rudy's, )ite of the cooperative attitude that has been expressed by both the applicant a Nner of Rudy's, will come back as a major issue. This project should wait u e new Implementation Ordinances have been adopted for the General Plan a much better proiect could be sited on this propertv. yes: Peotter, Hawkins, Cole and McDaniel Noes: Eaton and Toerge bstain: None ECT: Newport Beach Brewing Company (Use Permit No. 3485) http: / /www.city.newport- beach. ca.us /PlnAgendas/rnn01042007.htrn Page 6 of 24 ITEM NO.3 03/19/2007 D 1 Planning Commission Minutes 01 /04/2007 Page 7 of 24 PA2006 -177 2920 Newport Boulevard Newport Beach Brewing Company has operated a restaurant/brewpub Approved cant to Use Permit No. 3485 since 1994. This permit was issued by the City in and it was subsequently amended in 1999. The City has received several Taints related to the operation of the use and the Planning Commission will ate the complaints, the operational character of the use and the condition r which the use operates. At the conclusion of the hearing, the Commission require alteration of the operation or it may delete or modify conditions of )val. The Commission also may conclude that no changes are necessary and ation of the Use Permit may be considered at this time. ssioner Hawkins noted that due to a financial conflict, he was from deliberation on this item. David Lepo noted that a request for a continuance on this matter had be rived from Mr. Bruce J. Low to allow some of the residents in the area nd. Following discussions with Mr. Low, that request was withdrawn. Lepo noted that the conditions contained in the staff report were those tha re agreed upon by the applicant. He noted that he has read the historica xmation on this subject and in talking with all parties concerned, there haw an improvements with the current operation. By admission of the applicant y noted the residents did have valid concerns that they have hence bees tressed. There is an understanding that there is not just one establishment tha s created the problem in the area, so there is a range of opinions on what thi xopriate action by the Planning Commission should be by local residents. are is an issue that remains on the restriction on the amount of eating area tha available on the weekdays and the weekends. This is an issue for thi nediate residents due to lack of guest parking during the summer months. other concern is the hours of evening operation. The Planning Commission cai ange the hours, however, there is more of an interest on the amount of eatinc :a. Staff is asking for direction from the Planning Commission. r. Campbell, Senior Planner, gave a brief overview of the staff report noting: • The Brewing Company has volunteered: when a queue forms at 9:30 of 10:00 in the evening, they will move it and take patrons in from the Newpor Boulevard side of the building. • They have instituted an enhanced security operation with more parking to patrols. • They have sent all their employees and owners to training under the LEAD: program as conditioned. • Bottle recycling - no dumping outside during late hours to prevent noise. • They have agreed to put in a trash dumpster cover to provide visual relief. • The conditions of approval contained in the December 29th memorandur are reflective of all these changes in total. The Brewing Company is agreeable to the changes. • At Commission inquiry, he noted these voluntary changes have occurrec since the last meeting, and there was one police investigation report datec October 2006. Commission inquiry, Assistant City Attorney Mr. Aaron Harp noted: http: / /www.city.newport- beach. ca.us /PlnAgendas /mn0l042007.htm 03/19/2007 82 Planning Carnmission Minutes 01/04/2007 Page 8 of 24 • In order to modify a condition of a use permit, either there has to be determination of grounds for revocation, or, if in complying with our Is condition regarding the health, safety and welfare, you can find a violation. • In this instance, if there is an agreement regarding voluntary modification conditions, then you don't have to find those grounds for revocation exist. • If there is not an agreement what the modified conditions should be, yi would have to find that there is grounds for revocation in order to modify tl conditions. • Based on the presented evidence from what I see the grounds do ex based on primarily the testimony that came out of the initial meetings. • What we have seen from the Brewery is a willingness to work with the C to resolve the problems associated with the facility. • Based on the police report that was prepared, and from the independe investigation, it appears that those initial violations of the use permit ha, been corrected by voluntary measures taken by the Brewing Company. • What they are proposing is reasonable and everyone agrees as to what tl conditions should be. There may be some disputes whether a few of the should go a little farther as some of the residents would like to see chang that the Brewing Company is not in agreement with. • Overall, the Brewing Company has taken substantial steps to take corre the violations. • There seems to be some ambiguity as to what the condition of the Coas' Commission was to begin with. Correspondence that went to the Coas' Commission said what the condition that is contained in the use permit sa now. It says Monday thru Friday at 1500 square feet. It did not say the was a condition that would enforce that to be daily. There are de restrictions and if the California Coastal Commission wants to find that the are violations to those conditions, those are other agency's concerns. • Our condition is clear as to what it says and it does not mirror what tl California Coastal Commission says. • No change to Condition 6 is being suggested by staff. Craig Frizzell, Detective Services Commander of the Police Department, noted: • Following the last meeting on this subject, a police investigation w conducted at the request of the City Attorney's office. • There was a total of 7 visits between the end of August thru the last day October. • The last visit was specifically to address Condition 6 to see if the ent restaurant was opened. • The other visits were primarily during prime time weekend evenings w multiple detectives from vice and intelligence units. • We did not find much of anything that went on there. • They would scour the parking lot and order food in the restaurant until jt before closing and took an underage minor to see if she would be allow in, she wasn't and was told by the door person that no one under 21 cot enter in after 10:00 p.m. without an adult. • This operation has never been a problem. However, it is the area whE there is an over - concentration of licenses. • Reporting District 15 has 73 liquor license in an area that is .327 squE miles. That is the problem, this operator we do not believe is the problem. • At Commission inquiry he affirmed that the investigations happened late night. http: / /www.city.newport- beach .ca.us /PlnAgendas /mn01042007.htm 03/19/2007 �S Planning Commission Minutes 01/04/2007 Page 9 of 24 There would be no difference if this investigation occurred during summer or any other time of the year. Based upon his experience, this was a comprehensive investigation. We will continue to pay visits in time to be sure that they are still compliance. Campbell noted that the Brewing Company is voluntarily keeping the kitcl n until the establishment closes. Anyone who wants to can order from the man Cole asked for a discussion on the difference between a bar and a K the oriainal Council intent as to whether this was a bar versus r. Lepo noted: Per the minutes of the Council 1999 meeting when they approved the T 75 license, the intent was well intentioned; however, the terms of the permit would have made it very clear and specific enforceable condition memorialized that premise on which the permit was granted, which was applicant wanted to get this license to get more food served after the he of 10 or 11 o'clock until 1 o'clock in the morning. That was the understanding, but we could have done a better job with conditions. Harp added that he had reviewed the minutes and it was clear that the inb is to have food served up to closing, that it operate in a restaurant -like manr sere alcohol was sold as well. What was initially seen when the Brewery cal was there were no condiments on the table, no food was sold or it was a yr Red menu, and basically it turned into a bar at night. The changes that tir ve now made have turned it back into more of what the original intent w rich is a full menu with condiments available and operation more like term restaurant/brewpub is in all the conditions and the facility is operating ner McDaniel asked about an age requirement for entrance into or accompanied by an adult? Harp answered that they do allow people under the age of 21 in mpanied by an adult. Lepo added that the LEADS (Licensing Educational on Alcohol and Drw ram and discussion with the Police Department tells you that any place witl )r license should be responding that way. The employees are instructed manner as the program does not distinguish between establishments. issioner McDaniel noted it still means it is a bar more than it is a restaurant. bar that sells food. Discussion continued on definitions, Condition 10 s from 1999 and interpretations. ssioner Cole noted that the issue to be discussed tonight is whether modify or revoke the use permit for the Brewing Company. He asked http: / /www.city.newport- beach. ca.us /PlnAgendas /mn01042007.htm 03/19/2007 Sq Planning Commission Minutes 01/04/2007 Page 10 of 24 akers keep their comments on the issues of after hours, behavior, and mical conditions. Nic comment was opened. y Kolbly, General Manager of the Newport Beach Brewing Company, noted: • The queue line change has worked well. • The full menu has been advantageous especially with the boat parade parties that came in for food. • In 1995, they had a Type 23 beer and wine license with hours from 11:30 Sunday through Thursday and 1:00 a.m. on the weekends. • In 1999, they got a Type 75 liquor license and lost 1/2 hour Monday through Thursday, and the weekends are still 1:00 a.m. • In 1995, when they opened up, they had the policy of carding people after 10:00 p.m., which is the same policy today to protect their license. • The LEADs certificate program has been the better instructional program. • There is an open door policy and the establishment is run the same way anytime of the week so the police can come in anytime and do an investigation. • Every brewpub cards after 10:00 p.m. in order to protect their licenses. • There are other restaurants that card as well as the brewpub. • We still maintain a higher percentage of food sales than alcohol sales and have since day one. • At Commission inquiry he noted he would not agree to a modification to Condition 6 closing down part of his establishment on Saturdays and Sundays. There are a number of families that come in to be served and use that space. ien Miles, attorney representing the Newport Brewing Company, noted that had been distributed to the Planning Commissioners as part of d. He gave an overview of the brief, noting: • Directions given to the applicant were to be solution - oriented and addre the concerns of the residents, which they have done. • Line relocation to the front of the building was an effort that included tens improvements assuring safety and effectiveness. • Security Plan - letter sent to residents regarding security beyond the hOL of operation of the Brewing Company. The security team is on site minutes after closure and deal with the City's Municipal parking lot as w as the Brewing parking lot. • LEADs program - alcohol training done for owners, operators a employees focusing on the prevention of underage drinking. Carding is important element. • If there is an effort to challenge the permit condition than that would be tl preferable option. Condition 6 in the use permit is clear and we have h several years implementing it. There is case law on point directed to tl California Coastal Commission unable to, after a justifiable reliance on vested right, come back and change it. • He then noted that he made reference to the October 13, 1993 letter. • He stated that the hours before 5 p.m. are high food volume hours. • The Brewing Company is pushing food as they have the issue of alcot http: / /www.city.newport- beach. ca.us /PlnAgendas /mn0l042007.htm 03/19/2007 9G Planning Commission Minutes 01 /04/2007 Page 11 of 24 versus food sales receipts. . At Commissioner inquiry, he noted that they have read, understand agree to all the recommended changes to the conditions as contained in staff report. (12/29/2006 supplemental report) comment was opened. Wetherhault, local resident, noted: • His disappointment with the Planning Department and City Council as appears that they focus on aspects of how to get around issues if there is threat of a law suit. • He noted circumstances with a rehab facility in the area. • There is a parking issue before 5 p.m. on the weekends. It was clear th what Coastal Commission reflected as that space was for seven days week, not just Monday through Friday. He wants to see the City st: enforcing the Coastal mandates. • The City Council approved the Brewing Pub with the CUP's put forth by ti Coastal Commission; they should be reflected. • This establishment is a bar after 9 p.m. and this area has a hea, concentration of bars. This was supposed to be a restaurant and it is nc more of a bar. • 1 would like to see reduction on Friday and Saturday by 2 hours; have the shut down by 11 p.m. like other restaurants. • Our neighborhood is impacted by after hours activities in the parking Ic south of the Brewery. At Commission inquiry, he noted that he has no dire proof that people come from the Brew Pub. mmissioner McDaniel noted that the Brew Pub has made changes to blems in their parking lot. It is not fair to say that their patrons are re activities in parking lots further down by the residential area. Reese, local resident noted: • His concern of reading what happened in 1993 and 1999, there was r doubt that the intent was for this to be a restaurant. Ancillary to that the would serve alcohol and have a brew type company environment. • With security guards at the doors and bouncers inside, it is a b atmosphere. • You have to decide whether you want them to be a restaurant or a bar. • I disagree with the Police Department, the Brew Pub is part of the problem. • Every weekend he is awakened by people leaving the drinkir establishments. • There needs to be leadership and a decision made as to whether this is be allowed. • Conditional use permits have to be enforced. • They should be a good restaurant, not a bar. • What needs to change in Cannery Village is the impact of the amount alcohol being served at night. Staid, local resident, noted there is still a problem with the operation of the ing Company and there needs to be conditions to see that it becomes better. dded that there still continues to be a problem Monday through Friday anc http: / /www.city.newport- beach. ca.us /PlnAgendas/mn01042007.htm 03/19/2007 8Gj Planning Commission Minutes 01/04/2007 Page 12 of 24 if the loading area could be moved from the front during the week after :ephanie Rosanelli, local resident, noted her opposition of this establishm, )eration for previously stated reasons and noting similar establishments w e City and how they operate. She stated noise is a problem and suggested restaurant would be a better business value. Martin, local resident, noted that he has the same problem with khouse in Corona del Mar. comment was closed. rirperson Cole asked about the suggestion to reduce the hours of the bar weekends; noise and unruly behavior; Campbell answered that the continuation of the substantive changes that Ning Company have initiated has improved the situation. Staff did not h se to suggest a reduction of hours. r. Lepo noted that these people live there and have witnessed instances tha ave happened that were not seen by the police. As far as the comment for IN )urs, that was the key thing that should have occurred during 1999 and it didn't. you didn't want it to be a bar, then the hours of operation should have beer nited to 10 or 11 p.m. I read through Condition 10 and it doesn't guarantee wha was intended to do. You have the option to make it be a restaurant but wha iaracteristic would change? They have a full kitchen, they don't have Iivr itertainment and dancing, they have regular meal service until 1 in the morning they can serve alcohol until that time. They are complying. However, a �staurant should have been limited to the hours of 10 or 11 p.m. If that is IN rection, staff can come back with the necessary finding for grounds fo vocation and therefore you can limit the hours. I have sympathy for the owne A the residents alike. mmissioner McDaniel asked that instead of cutting their hours, cut the hr it they can serve alcohol. It seems that would solve the problems. The pe for a restaurant that shall not be construed as a bar. Testimony is from plicant that 90% of the sales after 11 p.m. is alcohol. Harp added that there is evidence as presented that they did not have rec I service and that they did violate Condition 10. If that is where the Plan emission wants to go, there is a foundation that can be made to find that. dition 10, as written, talks about regular meal service. However, staff e back with the possible finding for legal grounds to revoke the use pe lify the use permit or basically approve the suggested conditional changes a been agreed upon by the operator. continued on the 1999 Council minutes, enforcement of future uses, grounds for revocation and standards. mmissioner Peotter noted he could support the modified conditions but has blem with the issue of carding, as most restaurants do not card. Rather th it hours, he suggests that there would be no carding at the door, which puts tl den on the employees when they serve drinks to do the carding at tables or http: / /www.city.newport- beach .ca.usiP1nAgendas /=O1042007.htm 03/19/2007 97 Planning Commission Minutes 01 /04/2007 Page 13 of 24 bar. He also suggested that this come back in six months for another r if they continue to improve, they can continue to operate and if they rbe then we can reduce the hours. Toerge noted: • This facility is operating as a bar. The operation does have conditions ar they have been established for many years. • The conditions could have been more clear and I think the City needs take some responsibility for that. • There is a problem down there but there is an inability to tie all the: complaints specifically to the Newport Beach Brewing Company. I doi think we can ask them to correct the regional problems occurring dov there. It is not fair. • The Brewing Company has taken responsible steps to implement tl characteristics to minimize the problems, it won't correct them all, but I woi commend them for that. Frankly, that is what they should have been doir from the start. • He noted that it should close at 11:00 p.m. and the condition needs to I modified • This item should be brought back for another review. During that time there are problems, then they can be documented and then we will be al: to address the issue; however, there is no evidence today to call t revocation today. Cole noted that there is a condition that has a review of 6 months or 1 Commission inquiry, Mr. Harp read Condition K regarding the modifyi ditions to the Use Permit and Zone Code Sections 20.89.060 and 20.96.040. imissioner Eaton noted that the neighborhood problems are not all caused facility. We should adopt the modifications to the conditions that the applic agreed to and we should review this in a year. nmissioner McDaniel noted his concern of current operations, the conditions : run with the land and allowance for this to come back for review. oussion continued. ,istant City Manager, Sharon Wood, noted: • This was the first use permit issued under the then brand new Alcoholic Beverage Outlet ordinance. • Amendments to use permits had been requested for full alcohol sales and/or to extend the hours of operation. • The City always wanted to prevent them from becoming bars and wanted them to be restaurants, and for a while we conditioned the amount of sales for food and alcohol, but that was hard to track. • The next thing we thought to do was to extend the hours but maintain that they were a restaurant and provide full meal service until closing. The thought was that if nobody was buying full meal service until that time, that it wouldn't be a reasonable business decision for them to continue and thev bttp: / /www.city.newport- beach. ca.us /PlnAgendas /mn0I042007.btm 03/19/2007 � Planning Commission Minutes 01/04/2007 Page 14 of 24 would shut down when the full meal service was no longer reasonable 1 them. That condition has recently been working in this case because Mr. Kolt has said he has reinstituted the full meal service and patrons are takii advantage of it. We could have done a better job, but Mr. Lepo is reading that conditi( correctly and the provisions in the ASO Ordinance for revocation modification are the other protection that carries forward over time so th even if they are doing the full meal service for all the hours they are open, they are still having these problems in the parking lot, that still gives tl Commission grounds to consider modification and or revocation. airperson Cole noted he shares the concerns expressed by the Commission. wever, the Assistant City Attorney has given us the leeway under the ABC finance that would allow us to fine adverse impact to the neighborhood. We re grounds to modify or revocate if the Commission desires. The main issue; they relate to a bar comes down to noise, unruly behavior, trash and parking. I )ears that there is willingness and desire to make changes and the operator )ws there will be scrutiny going forward. I believe a short period for review for to continue monitoring and ask the neighbors if there are issues, we can dea h them. I would like to see us approve the conditions submitted by staff anc xoved by the operator. I am open to limiting hours in the future and that mar the one condition that would solve most of these problems. Miles, representing the attorney, noted: Whenever there is queuing, we would relocate the line to the front of building. They agree to a review in 6 months or a year. nmissioner McDaniel noted that this has been a good opportunity for th( rator and the public to talk. It is not the intent of the Commission to pu body out of business, but it is clear that everyone needs to be good neighbors. suggested that the review be done after the summer, possibly October 2007. ion was made by Commissioner Eaton and seconded by Commissie faniel to modify Use Permit No. 3485 by choosing the conditions in the mi d December 29, 2006 with the deletion of after 9:00 p.m. from Condition the addition in Condition 26 that after the words public hearing, add within and if complaints of alleged violations. Lepo asked about carding at the door, should this be included in the motion? iissioner McDaniel suggested October 2007 would be the better month. of the motion and the applicant agreed. a brief discussion, it was clarified that Condition 19 would strike after mended motion was made by Commissioner Peotter and seconded :)mmissioner McDaniel to change Condition 26 to allow people under the age I to enter the establishment with some sort of hand stamping or other protocol at they are not served alcohol. It would allow the establishment to act more Ii restaurant. http: / /www.city.newport- beach. ca.us /PinAgendas /mn0l042007.htm 03/19/2007 9� Planning Commission Minutes 01/04/2007 Page 15 of 24 Miles noted that the LEADs education and meetings with the Poli artment and other stakeholders within the City, it was confirmed that this is r istent with underage drinking, risk and liability. It is a business judgment ;e service. The Brewing Company allows patrons under age with an adult r at appropriate times. Generally, after 10 p.m. there is carding at the do this is a condition that we would not be in agreement to change nor appro her condition that underage patrons can enter the establishment at any he )ut an adult. >cussion continued on the LEADs criteria, underage drinking and the operator. nmissioner Toerge noted he would not be supportive of this project if It ration can not do whatever means necessary to operate as a restaura ing alcohol. To shut this down to people after 10 p.m., clearly states this is and if this is what we are going to say, the hours need to be reduced. If it is aurant it has to stay open. )mmissioner McDaniel noted he agrees with the problem of not being able to the restaurant after 10:00 p.m. due to age.0 )mmissioner Peotter noted he would clarify his motion to add, because of s other words, if the guy is drunk or unruly and he is 20, 1 don't want to make at they have to let the guy in, but for age reasons only I don't want to c . Miles answered that if the Commission mandates that the Brewing Compa allow entrance at anytime, they can live with that as long as they reserve t ht to serve anyone under appropriate conditions but that would not be soli sed on age. on Amended Motion Ayes: I Peotter, Cole, McDaniel, Toerge Noes: Eaton bstain: Hawkins 'T: McCloskey Residence (PA2006 -046) pA2006 -046 212 Crystal Avenue i for a ance to exceed the 1.5 FAR limitation for a single - family hom Approved in the R -1. rict. ne Murillo gave an overvie a staff report noting: • Proposal is a significant alteration an noting to a single family resides that is currently non - conforming due to rear alley setback and number of parking spaces provided. • Project implementation would result in development 657 square f three -story residence. • With the exception of floor area, the structure would be br t i conformance with all development standards of the R -1.5 Zoning Distric . • The project exceeds the maximum floor area established for this site by http: / /www.city.newport- beach. ca.us /PinAgendas /mn01042007.htm 03/19/2007 90 Item 4 Planning Commission staff report dated August 17, 2006 (with attachments noted) �I bLAWK BLANK CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT Agenda Item 4 August 17, 2006 TO: PLANNING COMMISSION FROM: James Campbell, Senior Planner (949) 644 -3210, jcampbellCa ?city.newport- beach.ca.us SUBJECT: Newport Beach Brewing Company Use Permit No. 3685 2920 Newport Boulevard INTRODUCTION On May 4, 2006, the Planning Commission discussed the operation of the Newport Beach Brewing Company in response to concerns raised by nearby residents, property owners and local business persons. Staff prepared a report providing a limited background of the use and a discussion of the issues raised (Exhibit No. 1). At the conclusion of the discussion, the Commission found that there was sufficient information to review and possibly modify the Brewing Company's Use Permit. PUBLIC NOTICE The Newport Beach Brewing Company has been notified of this hearing. A hearing notice indicating the review and potential modification of Use Permit No. 3484 was published in the Daily Pilot, mailed to property owners within 300 feet of the property (excluding roads and waterways) and posted at the site a minimum of 10 days in advance of this hearing consistent with the Municipal Code. Additionally, the item appeared upon the agenda for this meeting, which was posted at City Hall and on the city website. Staff recommends that the Planning Commission take public testimony and direct staff to prepare revised conditions of approval for potential adoption at the next meeting. q3 Newport Beach Brewing Company August 17, 2006 Page 2 BACKGROUND The current use was established in 1993 with the approval of Use Permit No. 3485. The staff report and minutes are attached (Exhibit No. 2). The establishment began operating in 1994. The Coastal Commission approved a modified project subject to conditions and the City Council later modified the conditions to conform to the Coastal Commission special conditions. Coastal Development Permit 5 -93 -137 is attached with the Coastal Commission's staff report and deed restriction (Exhibit No. 3). In September 1999, the City Council approved an amendment to the Use Permit to allow full alcoholic beverage service while amending and adding conditions of approval. The staff reports and minutes from the 1999 amendment are attached (Exhibit No. 4). When the use was established, the neighborhood was different, as fewer residences were located nearby. In the last several years, new mixed; use projects have been constructed and occupied, and residential uses are now', located in much closer proximity to the use. Since the last meeting, staff has met with the Brewing Company and concerned residents to identify the problems and potential solutions. The operator has had their attorney prepare a letter on their behalf indicating their position on the primary issues and conditions of approval. Additionally, the letter outlines several steps the operator is willing to consider (Exhibit No. 5). DISCUSSION The Cannery Village area is evolving and the residential component of this mixed use village is emerging. This transition is a result of specific General Plan and Zoning changes adopted in the late 1980's and early 1990's. While some might argue that the Brewing Company was there first and the new residents should have known before they bought into the neighborhood, it is also reasonable for a business to recognize the nature of the neighborhood in which it is located and to adapt its operation to ensure compatibility with the neighborhood. At the time the Use Permit was approved in 1993, the City applied a standard requirement that should the operation of the Brewery be found detrimental to the community, the Planning Commission (or City Council on appeal) can add or modify conditions of approval. The unstated purpose would be to address objectionable aspects of the operation to alleviate problems. 1 -I Newport Beach Brewing Company August 17, 2006 Page 3 Complaints against the operation fall into the following categories: • Operation of a bar rather than a restaurant • Violations of conditions of approval • Objectionable behavior of patrons during late evening and early morning hours both on and off -site • Noise from property maintenance activities Those aggrieved believe that the use constitutes a nuisance especially after approximately 10:30PM when the use operates more like a bar than a restaurant. There seems little objection to the use prior to the end of traditional meal service. The Brewing Company is required to close at 11:OOPM Sunday through Thursday and 1:OOAM on Friday and Saturday. What is a restaurant/brewpub? The City authorized a "restaurant/brewpub" and prohibited a bar, cocktail lounge, nightclub, live entertainment venue or any other use that serves alcoholic beverages during hours not corresponding to regular meal service (Condition No. 10). Condition No. 10 reads: `The approval of this use permit is for a restaurant/brewpub and shall not construed as the approval of a bar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service hours (food products sold or served incidentally to the sale or service of alcoholic beverages shall not be deemed as constituting regular meal service) nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment andlor dancing." It is clear that a restaurant is authorized. In staffs opinion, a brewpub is simply a restaurant or bar where the beer is made on the premises and sold. The definition of a brewpub might not include the term bar as differing definitions are found using different dictionaries. Staff believes that the City authorized both a restaurant and a bar and it can be reasoned that the use cannot be any one of the prohibited uses listed as a primary use as the restaurant is the primary use. Does the restaurant have to be open at the same time? Traditionally, the City requires the kitchen to be open at all times for meal service. In this case, no requirement was made other than the reference contained within Condition No. 10. It can also be argued that the brewing of beer is also necessary, although this is not at issue unless the brewing of beer contributes to any nuisance. The kitchen is reported to be open at all times; however, a limited menu of appetizers is available in the late evening. The City did receive a report from a resident indicating that they were told that the kitchen was closed at approximately 11:00 PM on August 5t' (Exhibit No. 6). C15- Newport Beach Brewing Company August 17, 2006 Page 4 The use operates predominately like a bar after approximately 10:30PM. It is staffs opinion, the use, as a whole, is primarily a restaurant as it operates as a restaurant during the majority of its operating hours. Some believe that the City permitted a restaurant based upon the description of the use put forth during the use's original hearings in 1993. Although the restaurant use was marketed as the primary activity, the applicant described the proposed use in 1993 an "eating and drinking establishment." The late evening and early morning hours authorized reflect an understanding by decision makers that the use could take on a bar -like character since it is well known that traditional meal service after approximately 11 PM is rare. This recognition is also supported by calling the use a brewpub, which is a reference to a drinking establishment unless one believes that a brewpub can not be a bar. Staff believes that the use is prohibited from operating as a bar (or any use described as prohibited within Condition No. 10) without the restaurant being considered the primary use. The real question in staffs mind is whether or not the restaurant/brewpub is creating a nuisance that requires specific action. That may be the case; however, if the Planning Commission believes that the use cannot take on a bar -like character in the late evening, eliminating that aspect of the use would be necessary through Commission action to modify the conditions and or findings that would describe the use. Given that the majority of the complaints relate to late evening hours, the simplest solution would be to curtail the hours of operation. The operator's attorney has offered clarification of Condition No. 10 by suggesting the following language be added: "regular meal service hours means the meal service hours regularly established by the restaurant/brewpub. The service of alcoholic beverages during regular operational hours of the restaurant/brewpub that do not include meal service is prohibited." Staff is not comfortable with this language without understanding what meal service hours the operator has established and whether or not it would change in the future. If the term regular meal service requires clarification, staff suggests that the Commission establish the meaning of the term; however, if specific hours are identified, the second sentence appears to prohibit alcohol service outside those hours. Is alcohol "ancillary"? (Condition No. 9) Condition No. 9 states that, "the operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant." The Zoning Code defines an ancillary use as "a use that is clearly incidental to and customarily found in connection with the principal use; is subordinate to and serves the principal use; is subordinate in area, extent, or purpose to the principal use served; contributes to the comfort convenience, or necessity of the operation, employees, or customers of the principal use served..." (0 Newport Beach Brewing Company August 17, 2006 Page 5 Some believe that the fact that the use operates more in the character of a bar in the late evening with little food sales, the use is in violation of this condition. Furthermore, the General Manager admitted at the last meeting that the sale of alcohol is roughly 90% after 11 PM and that it is roughly 50% during the day. Is alcohol ancillary to food service? Although one can conclude that alcohol may not be ancillary to food service, an alternative interpretation exists in that the operation of the use cannot occur without the restaurant. If the facts show that alcohol is not clearly incidential to food service, the Commission should amend the condition to achieve a desired outcome. The applicant has suggested a modification to the condition "The service of alcoholic beverages shall be ancillary to the primary restaurant/brewpub service operation of the restaurant. Accordingly, alcoholic beverage service is not permitted independent of restaurant food or brewpub services." Although this language could be applied, it changes the nature of the condition. First, it excludes the operation of the brewery itself (retail sales of beer for off- site consumption) and it changes the regulatory relationship between alcohol service and food service. The new relationship proposed would be limited to alcohol sales and the use entirely as opposed to food service specifically. The suggested change also modifies the nature of the use to indicate that alcoholic beverage service cannot be an independent use. As noted previously, in similar cases, the City has required the kitchen to remain open at all times. Simply opening the kitchen would not necessarily change the nature of the use after approximately 10:30PM as most patrons appear to be more interested in alcohol service. If it is determined that alcohol service should be curbed to be clearly incidential to food service at all times given the definition of ancillary, staff would suggest that the hours be limited to midnight or 11 PM as alcohol service prior to these hours can more easily be viewed as incidential. Simply requiring the sale of alcohol to be below a specific percentage of sales may or may not achieve a desired outcome and it presents enforcement issues. If it is believed that the use is being operated as intended, the condition should be amended to facilitate the use while reducing conflicting interpretations or application. How much area is permitted before 5PM? (Condition No, 6) Condition No. 6 requires a reduction of net public area prior to 5PM weekdays. Staff has monitored this condition periodically and has never observed a violation as the portion of the dining area designated to be closed prior to 5PM has been closed when observed. The condition does not apply to weekends and the full dining room is open on weekends. The Coastal Commission required the same reduction in net public area although their condition does not indicate when the condition is applicable. Coastal Commission staff has indicated that the limitation applies daily and the issuance of the Coastal Development Permit was predicated on the City's commitment to enforce the special condition. In a letter date stamped "received October 13, 1993 by the Coastal 91 Newport Beach Brewing Company August 17, 2006 Page 6 Commission," the City agreed to enforce the City's limitation that applied Monday through Friday (Exhibit No. 7). Coastal Commission staff must have accepted this commitment as there is no evidence to the contrary and they issued the Coastal Development Permit shortly in early 1994. Is there a lack of control of patrons in the parking lot? Standard Requirement D requires the applicant to take "reasonable steps to discourage and correct objectionable conditions that constitute a nuisance" either occurring on site or in the areas surrounding the establishment that are directly related to patrons of the establishment. Many objectionable conditions have been reported, from patron behavior to noise. Primarily on Friday and Saturday evenings after approximately 10:30PM, the establishment is close to capacity and there is a queue of several dozen patrons waiting to get in. These people congregate in the parking lot and they can be boisterous. Although the applicant indicates that restrooms are made available upon request, people have been reported using the alley and adjacent properties as a toilet. When the establishment closes, patrons have a tendency to loiter and again they can be boisterous as they leave. In some cases, patrons wander to another night spot that has later hours of operation and these people return later in the early morning hours to retrieve vehicles and can be more of a nuisance. The operator has expressed a willingness to tow cars from their lot after they close. The effectiveness of this proposal is unknown and it might simply disperse the issue further into the neighborhood. Fights, sexual encounters and vandalism have been reported to staff during the late evening and early morning hours. The difficulty is determining where these people are coming from and whether or not an establishment should be held responsible. Some of these incidents may not be attributable to the restaurants or bars in the area let alone the applicant. Obviously, the individuals who are committing these acts are responsible, but it is reasonable to assume that most of these reported incidents are related to the sale of alcohol and the concentration of restaurants and bars in the area. Has the Brewing Company taken all reasonable steps to discourage and correct objectionable conditions attributable to their patrons when they are open? The applicant provides 3 -5 security guards who make sweeps of the parking lot and attempts to control patrons waiting for entry. They discourage loitering on site in the parking lot when they leave. Signs have been posted to alert patrons to be respectful of neighbors as they come and go. Staff requested that the applicant prepare an enhanced security plan in an effort to show how they can be more effective, and the applicant has not provided their security protocols. Residents who live overlooking the parking lot report that the applicant has not done enough especially in the light that the City has stepped up monitoring since receiving the initial complaints. M0 Newport Beach Brewing Company August 17, 2006 Page 7 One resident has suggested that the entrance of the facility be relocated to the street side of the building. The main entrance is from the parking lot and if the main entrance were located between the building and Newport Boulevard, even if only during the late evenings, one might experience a reduction in activity in the parking lot. This would benefit the residents to the east and south that abut the parking lot but it would not eliminate all activity in the parking lot; however, it might simply create other impacts to the west. The patio and the landscaping would need to be physically modified to accommodate the patron queue and modified entrance and in staff's opinion, the parking lot entrance is likely acceptable up until approximately 9:OOPM. This concept has trade offs and it might be worthy of additional consideration if the Commission directs. Based upon the applicant's letter and follow up communications, they appear to be willing to consider this alternative during the late evening hours. Although some nuisance issues are not attributable to patrons, the applicant is proposing to cover and secure the trash enclosure. Since the closest housing is about roughly 20 feet away and is 2 -3 stories in height, this should help these residents. Condition No. 14 requires screening of the trash enclosure. The applicant proposes to change the method in which recycling of bottles is handled to reduce noise. Dumping bottles into a metal trash bin will make an objectionable noise especially when it is done around 2AM. The applicant proposes to place the bottles in plastic bins within the interior of the restaurant and then the bins would be loaded onto a truck. The applicant has also expressed his commitment to schedule all waste pickup (trash, recycling & grease trap vactoring) at more reasonable hours of the day. All of these offerings are steps in the right direction. Are the owner, manager and employees properly trained? In the applicant's letter, they are offering to have all applicable employees complete alcohol service training. Standard requirement F requires the owner, manager and all employees to undergo and successfully complete certified training program on responsible sales and service of alcohol. Although this condition indicates that compliance is required within 6 months from permit issuance, no information regarding initial or ongoing compliance was available. Staff recommends that this condition be amended to reflect the need to make this condition perpetual and that a report be submitted annually by the applicant documenting compliance with this condition as the applicant's staff changes over time. Staff has requested confirmation that the owner, managers and employees have or will soon complete this required training, but to date, the operator has not provided any additional information other than their letter. Summary In the prior report, staff wrote that the complaint indicates that the operator has no regard for the neighborhood and it was staffs impression that this statement was not correct as they seemed reactive to addressing the complaints. Staff believes the Newport Beach Brewing Company August 17, 2006 Page 8 applicant is willing to make improvements and modify their operation to address neighbor concerns, but based upon the operator's brief response letter (Exhibit No. 5), the applicant seems to be seeking speck guidance from the City. Although the applicant has made some efforts to address the neighborhood complaints, lingering issues remain. Clarification of several conditions of approval is necessary depending upon how the Commission views the nature of the operation. Staff recommends the following: 1. Condition No. 9 should be modified to eliminate the conflict between the term ancillary and the true nature of the operation. 2. Condition No. 10 should also be modified to clarify what is permitted and what is not. 3. Require that a screening cover be constructed on the trash enclosure. 4. Require that a new entrance be implemented on the Newport Boulevard side of the building for use after 9:00 PM Thursday through Sunday. 5. Require the preparation of a detailed security plan and its implementation. The Planning Commission can direct staff and the applicant to implement the items listed above. The Commission can add or modify the list of potential changes to this Use Permit. Staff would return with the changes to the conditions and the change to the plans for the Commission to review at a future hearing. if testimony received supports revocation, the action can be delayed to a future noticed public hearing as revocation was not an identified option within the notice for this hearing. The Commission also has the option to continue to monitor the situation and direct no changes at this time. Prepared by: Ja es Campbell, 8eni6rr anner Attachments: Submitted by: il 1 atricia L. emple, :111anning Director 1. Staff report and minutes from May 4, 2006 2. Staff report and minutes from 1993 for Use Permit No. 3485 3. CDP 5 -93 -137 and supporting documents 4. Staff report and minutes from 1999 amendment of Use Permit No. 3485 5. Letter from the applicant's attorney dated August 8, 2006 6. E -mail from Joe Reiss dated August 9, 2006 7. Letter from City to Coastal Commission regarding enforcement of net public area 100 Exhibit No. 1 lot AT- Planning Commission Minutes 05/04/2006 Page 2 of 13 Zinc CaM (PA2003 -225) I ITEM NC 3222 E. Coast Highway PA2003 annDq review of Use Permit No. 2001 -040 that authorizes Zinc Cafd to operate as Approvi eating bkd drinking establishment with on -sale beer and wine license. Ung, sociate Planner, gave an overview of the staff report noting that no s were eived regarding employee parking or the current delivery ent occurr in the back alley. She noted that staff recommends amending 6 to allow th \rppews ant to use the existing alley for his deliveries and that 36 for annu be terminated as future reviews can be initiated if future s arise. irperson Toerge asked abouXondition 6 allowing deliveries. He stated he would to change the hours of deliveryN start at 7 a.m. in order to be consistent with the -e Ordinance and to end at 6 p.m. Secretan, owner of the Zinc Cafe, agrNd to the change in the hours of delivery. comment was opened comment was closed. Cole asked about evening operations. Secretan noted initially, following approval, evening operate s went until 8:00. T ✓ed to be too cumbersome, so that has been discontinued an ey close at 6:00 . He has started a wine tasting program on Thursdays as they a the option to ;e at 8:30 p.m. and may expand this venue. otion was made by Chairperson Toerge to accept the review and to modll that no delivery shall be permitted before 7:00 a.m. or after 6:00 p.m., and mdition 36 in place. imissioner McDaniel noted that unless the operator wants to change his hours, delete condition 36. Followina discussion the vote was called. Eaton, Hawkins, Cole, Toerge, Tucker and McDaniel None Henn None 3JECT: Newport Beach Brewing Company ITEM NC 2920 Newport Boulevard Use Permit 3485 - ussion of complaints received by concerned Cannery Village residents regarding vport Beach Brewing Company. Discussion Jim Campbell noted a letter received at the last Planning Commission meeting from Cannery Village Concerned, a group of residents alleging violations of the use (02- http: / /www. city .newport- beach.ca.us/PlnAgendas /2006 /mn05- 04- 06.htm 03/19/2007 Planning Commission Minutes 05/04/2006 Page 3 of 13 rmit as well as other activities they deem a nuisance to the neighborhood. He has en in discussions with the Police Department, Code Enforcement and staff and has dressed these in the staff report. At Commission inquiry, he noted the deed striction does not specify operation on particular days of the week. He has; however, en in contact with the Coastal Commission staff, Mr. Schwing, who noted his pressions. It is his impression that our condition that limits the net public area tween Monday through Friday should apply daily, so that is a conflict. Mr. Schwing is the process of acquiring the file from their archives to see if there is any additional ormation, which should be coming to staff within the next few weeks. Copley, General Manager of the Brewing Company, noted: • Condition No. 6 - We are under the impression that it was Monday through Friday and a section of the restaurant is closed off until 5:00 p.m. on those days. • Condition No. 9 - The kitchen is opened during the hours of alcohol service with the late night menu (pizzas and appetizers) from 10:00 p.m. to closing. . Condition No. 10 - Their emphasis is on being a restaurant. . Condition No. 17 - During football season on Sundays; there is a barbecue in the parking lot. Patrons are not allowed to consume alcohol in the parking lot and that is monitored. . Nuisance issues are being addressed by the increase of security staff in the parking lot when needed and to keep the noise level down; any patron in line is allowed to use the restroom in the establishment; security sweep the parking lot to assure no activity in cars, etc.; smoking is permitted on the patio; security clears out the parking lot starting at last call and continuing until all guests have left, which is about 1 in the morning; lids are being provided for the trash cans; the parking lot is swept daily; the next alcohol training class is June 8th, and about 314 of staff will be attending; and, letters have been sent to all purveyors and service people regarding service deliveries between 8 a.m. and no later than 8 p.m. . The Brewing Company feels they are a good neighbor as they have added signage, increased security and added surveillance cameras in the parking lot. Commission inquiry he noted: • The staff had gone to the alcohol training in 1999; however, he has had a large staff turnover since then and the new staff will be attending the training in June. He agreed that he will have new staff members get the training as soon as possible. • The dinner crowd is usually between 7 p.m. and 9 p.m. Service from 11:00 p.m. and 1 a.m.. is about 90% alcohol (55% liquor and 45% beer and wine) and 10% food. • Security staffing is 1 on Tuesday and Wednesday; 2 on Thursday; 5 on Friday and Saturday during a normal week. • Barbecue is handled by an outside vendor. The patron pays for the food inside and with a ticket they go outside and the food is put on a plate and then the patron comes back inside sits at a table to consume the food. )mmissioner McDaniel noted the concern is that this should not be a bar; however, it obvious that it switches between 11 and 1 and it is a bar. This is a problem as this is t what was approved. l03 http: / /www.city.newport- beach. ca. us /PlnAgendas /2006 /nm05- 04- 06.htm 03/19/2007 Planning Commission Minutes 05/04/2006 Toerge asked about a Special Events Permit. Is. Temple answered that the need for a Special Events Permit is if there is amplified r live outside entertainment, or that the patronage associated with the activity exceeds 50 persons. We could verify the number by sending Code Enforcement to investigate the next time it happens. rperson Toerge noted this is a discussion item only. No changes to the conditions allowed, but the Commission can determine, following public testimony, that this should be brought back for a full hearing. comment was opened. Low, 29th Street resident, speaking for a group of concerned citizens, noted: • They do not wish to close the Brewery; as it brings value to the neighborhood; and they are supported being there as advertised. • Issues to consider: is the current use permit in error with discrepancies between staff report, council minutes and Coastal Development permit? • It is their contention that the intent of the use permit needs to operate in less than 1,500 square feet Monday thru Sunday. • Adherence to the use permit and type of business that is being conducted. They are a bar, what restaurant has bouncers? There are no complaints with other local restaurants. . The Brewery turns into an obtrusive bar operation after 10:30 p.m. . Operators have made strides but the more serious ones still remain. There are complicated issues that create a tremendous amount of difficulty for the neighborhood. . We are here to ask that this operation be confined to what it represented itself to be in the beginning. Reese, 30th Street resident, noted that patrons have to show their identification in ar to get into the establishment. It is not a restaurant, not with bouncers and serving r appetizers after 10:00 p.m. This operation between 10:00 p.m. and 1:00 a.m. is ling more than a bar. This area is out of control and he is disturbed by the noise in early mornings. r Wetherhault, 30th Street resident, noted he agrees with previous statements. He distributed a listing of calls to the Police Department regarding alcohol related ants in this area. He stated that the restaurants and bars need to be maintained to use permits and allocations. Stade, 29th Street resident, noted she has been awakened with noise and :ed by patrons. rhanie Rosanelli, resident of Cannery Village, noted the noise at night and that one not leave their windows open. She too has had her home vandalized by tagging. ristine Andros, 30th Street resident noted the challenges are the noise and parking activities. This establishment operates as a bar. She has spoken to the bar ;rator on several occasions to inform him of disturbances in his parking lot. Page 4 of 13 16y http: /hvww.city.newport- beach. ca. us /PlnAgendas/2006 /mn05- 04- 06.htm 03/19/2007 Planning Commission Minutes 05/04/2006 Page 5 of 13 1 Shepherdson, 31st Street resident, noted his agreement with previous speakers stated any help would be welcomed. vin Weeda, noted his agreement with the previous speakers and asked that this item brought back for formal review. comment was closed. owing a brief discussion, the Planning Commission decided to bring this item back a formal review of the use permit. This item will be scheduled for an August was made by Chairperson Toerge bring this item back for a formal review in ust. bstitute motion was made by Commissioner Hawkins to call this item back for a wring within 90 days of this hearing date for review of the permit and operations in npliance with that permit and other Coastal Commission conditions and other rele aerials as necessary and take and receive public comment. Harp asked if the Commission would be looking at a revocation of the permit or just iification or possible additional terms, how should staff set this up? nmissioner McDaniel noted he is not interested in revocation of the use permit but need to make sure that the conditions are adhered to. Hawkins noted this is the spirit and thrust of his substitute motion. issioner Hawking restated his substitute motion: review of the permit, standing the terms of the permit, enforcement of those terms of the permit to the that there is non - compliance and then possible modification. This hearing is to Eaton, Hawkins, Cole, Toerge, Tucker, None Henn None ECT: Height Limit Exception for Light Standards (PA2006 -078) ITEM NO CA No. 200 Amend to add an exception with Chapter 20.65 (Height Limits) of the Recommet :ipal Code. Th ption would allow fight standards to exceed required height for Apprc subject to the revie approval of a Use Permit. Ion Nichols, Assistant Planner, g n overview of the staff report. He noted the se of this amendment is to add anothe ption to Chapter 20.65 that would light standards to exceed established heigh s subject to the review and val of a use permit by the Planning Director. This ti requires the use t to ensure that the proposal does not have a detrimenta ct on surrounding rties and shall be for light standards necessary for the iilumin of parking lots, is fields and other similar outdoor areas. !U5 http: / /www. city .newport- beach.ca.us/PlnAgendas /2006 /mn05- 04- 06.htm 03/19/2007 TO: CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT PLANNING COMMISSION FROM: James Campbell, Senior Planner (949) 644 -3210, Icam— bellOcity.newport- beach.ca.us SUBJECT: Newport Beach Brewing Company 2920 Newport Boulevard INTRODUCTION Agenda Item 3 May 4, 2006 FILE COPY On April 20, 2006 under public comments, the Planning Commission received a letter from The Cannery Village Concerned, which is a group of residents, property owners and business persons in Cannery village,—contending that the Newport Beach Brewing Company is violating its Use Permit (Exhibit No. 1). The letter goes on to request that the Use Permit be reviewed by the Planning Commission. The Commission requested that a report be prepared. RECOMMENDATION Receive and file. DISCUSSION Background: The current use was established in 1993 with the approval of Use Permit No. 3485. A former market/dell was converted into the existing restaurant/brew pub and a 600 square foot outdoor patio was approved. The property is located at 2920 Newport Blvd. in the Specialty Retail area of the Cannery Village /McFadden Square specific plan. The Use Permit was approved subject to revisions of the off-site parking agreement which would have allowed the applicant to use 29 parking spaces in the Cannery Village Municipal parking lot prior to 5 p.m. However, at the Coastal Commission hearing in July, the staff and Coastal Commission disagreed with the action that had been taken by the City and it was their determination that the use of the 29 parking spaces in the city lot would conflict with the public's ability to use the parking lot prior to 5 p.m. rvc� Newport Beach Brewing Company May 4, 2006 Page 2 The Coastal Commission approved a modified project subject to four conditions: 1) that the applicant record a deed restriction which would allow not more than 1500 square feet of service area being used prior to 5PM ; 2) that 41 off -site parking spaces will be maintained between 6AM and 5PM and 67 off -site parking spaces between 5 p.m. and 2 a.m., (the 41 off -site parking spaces between 6AM and 5PM are on privately owned property under the same ownership immediately adjacent to the brewpub and the additional spaces would be in the Municipal lot prior to 5 p.m.; 3) that the City Council "f$Scind` its 'parNer; -ction allowing the use of the off -site parking spaces in the Municipal ioL O for to -5PM; 4) that the City will agree to enforce the restrictions on the area of service (the 1500 square feet being used prior to 5PM). The City Council later modified the project and conditions to conform to the Coastal Commission special conditions. In September 1999, the City Council approved an amendment to the Use Permit to allow Newport Beach Brewing Company full alcoholic beverage service as well as amending Condition No. 7 related to the hours of operation on Fridays and Saturdays. The final revised findings and conditions of approval are attached. DISCUSSION The letter Mr. Low presented to the Commission on April 201" was received back in January of 2006. Since that time, Code Enforcement, Planning and Police Department staff have been investigating and monitoring the use. Police and Code Enforcement have meet with concerned residents and management of the Brewing Company. As a result, the Brewing Company has been taking steps to reduce incidents that are attributable to their patrons as well as to ensure that the use is operated in compliance with condition. They have increased their efforts to control the parking area by monitoring and controlling the people waiting to enter the establishment and they have increased sweeps of the parking lot by security personnel. 'The" Police Department reports that there were 14 calls for services that are rea'son'ably ` attributable to the operation since June of 2005. Seven of the calls were for noise in the parking lot. There was one fight at the establishment and one arrest of an unconscious drunk man in the parking area although it is not known if the man was a patron at the Brewing Company. The Police Department does not believe that the number of calls and incidents are above average. The Department has stepped up patrols and is monitoring the establishment. Checks to date have shown no violations of their ABC license nor any violations of State law related to serving intoxicated or underage individuals. The Department of Alcoholic Beverage Control has been contacted and has informed the City that they are conducting an investigation as a result of the complaints submitted by Mr. Low. The investigation is not complete and staff will follow up with ABC staff and will take action if appropriate. 107 - c- Newport Beach Brewing Company May 4, 2006 Page 3 Alleged Use Permit Violations 1. Condition No. 6- Net public area (NPA) limitation This condition requires a reduction of net public area prior to 5PM weekdays. Staff has monitored this condition periodically and has never observed a violation as the portion of the dining area designated to be closed prior to 5PM has always been closed. The condition does not apply to weekends. The complaint indicates that the Coastal Commission special condition applies daily and that the Condition No. 6 was not amended correctly to reflect what the Coastal Commission requires. The Coastal Commission's condition requires that a deed restriction be recorded and it makes no reference to when the net public area restriction would apply. Staff has requested a copy from Coastal Commission staff and will transmit it to the Commission when it is received. Prior to Coastal Commission consideration, the City's original condition applied the area limitation to weekdays and not weekends and this would have been the starting point for discussion with the Coastal Commission. There is no record in the City's possession to indicate that the Coastal Commission intended to limit the net public area on weekends; however the deed restriction may shed some light on the issue. When the City amended its conditions after Coastal Commission action, the City maintained the NPA limitation to weekdays so one can safely conclude that changing it was not an issue with the City at that time. 2. Condition No. 9 - Ancillary alcohol sales The complaint does not provide any evidence of a violation. The condition does not provide any method to gauge compliance. The condition could be modified in the future to indicate a percentage of alcohol sales to food sales. - 3. Condition No. 10 —Bar prohibition This condition indicates that the allowed use is a "restaurant(brewpub" and it prohibits the use from becoming a bar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service. It is staffs belief that the use remains primarily a restauranttbrewpub although the use takes on characteristics of a bar during late evening hours. A strict interpretation of this condition would prohibit alcohol sales outside traditional meal times; however, the operation is open to 11PM Sunday to Wednesday and 1 AM from Thursday to Saturday. The City has taken the position with similar uses that so long as the operator provides full meal service when open, the use would not be considered a bar. Staff understands that the operation has a limited menu later in the evening primarily consisting of appetizers. r0$ Newport Beach Brewing Company May 4, 2006 Page 4 4. Condition No. 17 — BBQ usage and alcohol use in the parking lot Condition No. 17 requires a special events permit for events or promotional activities outside normal operational characteristics of the use that would attract large crowds. The complaint speaks to the use of a BBQ and the consumption of alcohol in the parking lot. The Use Permit does not prohibit the use of a BBQ and the operator must not interfere with the use of the parking lot or exiting. The consumption of alcohol by anyone outside of the building or patio is not consistent with the operating characteristics and would constitute a violation. 5. Condition D — Objectionable conditions The complaint indicates many objectionable activities. As noted previously, the operator has agreed to monitor and moderate the activities in the parking lot. Further monitoring of the operator's efforts is needed. Some of the complaints regarding patron behavior are violations of law and if witnessed, the Police Department should be summoned. Due to the fact that the Police Department cannot patrol the establishment as often as possibly necessary, uniformed security in addition to the bouncers on the busiest nights may be considered. With regards to the trash area and trash dumping, the operator indicates that they have instructed their employees to secure the trash area and dump trash in a more sensitive manner. The trash dumpster is not located in a superior location as newly constructed residential units, including Mr. Low's unit, are located in close proximity. One simple way to eliminate trash dumping noise after hours is to prohibit it with a new condition. Trash would then need to be stored within the building or possibly on the patio overnight and dumped in the morning as a. reasonable hour assuming that this practice is consistent with the Health Departmentrules. Staff is looking into the possibility of relocating or covering the trash enclosure. 6. Condition E —grounds maintenance This condition requires the operator to remove all trash or debris from the property and sidewalks daily. The operator indicates that they will ensure compliance with this condition. Staff has visited the site on several occasions since receiving the initial complaint letter and found the site to be free of trash as required. 7. Condition F — Employee alcohol service training The operator has been directed to submit evidence of compliance with this condition. to? IA Newport Beach Brewing Company May 4, 2006 Page 6 Summary The complaint indicates that the operator has no regard for the neighborhood. Staff's collective impression is that this statement is not correct as the operator has been responsive to addressing the nuisances that do occur from time to time at the establishment. The complaint is correct in that the Cannery Village is a neighborhood in transition. Several mixed use projects have been built and occupied in the immediate area of the NBBC and staff believes that the trend will continue. Staff does not agree with the complainant's contention that the Council erred in the approval of this operation. The NBBC has been co- existing fairly well, although not perfectly, with the neighborhood since 1993. Staff agrees with the complainant in that the immediate neighborhood is changing with the introduction of additional residents. The neighborhood is a mixed use neighborhood in which nuisances do and will occur more often than purely residential neighborhoods. The applicant is aware of fact that it is their responsibility to be a good neighbor as well as the fact that they must comply with the Use Permit. They have been responsive to living up to their obligations and staff believes that continued monitoring is needed. The City will continue to monitor the situation and take enforcement actions necessary to ensure compliance with the Use Permit. Potential courses of action The Planning Commission can set this use permit for review and possible amendment or revocation at a future noticed public hearing. This agenda item is for discussion purposes only and no amendments to the conditions can be made at this time. Prepared by: Submitted by: es Campb II, Senior Planner Attachments: ", LL-JL Patricia L. Temple, Planning Director 1. Complaint letter from The Cannery Village Concemed 2. Current conditions of approval (i0 The Cannery Village Concerned A group of resldents, property owners and business persons In the Cannery Village January 25, 2006 City of Newport Beach 330 Newport Boulevard Newport Beach, California 92663 Attn: Code Enforcement Police Department Planning Commission RE: Newport Beach Brewing Company 2920 Newport Boulevard, Newport Beach Use Permit Number 3485 (9/13/1999) Dear Sir /Madame: The purpose of this letter Is to request compliance enforcement with "Use Permit" number 3485, Issued to the Newport Beach Brewing Company and a formal request for a "Use Permit" review by the Planning Commission. BACKROUNO: The Newport Beach Brewing Company, hereinafter referred to as (NBBC), operates a restaurant/pub at the above location, which was established on or about 1990. The most recent "Use Permir was granted In 1999, subsequent to a request by NBBC to add an ABC No. 75 alcohol license, which allowed the NBBC to add hard liquor, over and above, beer and wine (ABC type 23 license) at the subject location. The Planning Commission denied the request. The request was overturned and approved by the City Council. The applicant's main argument for the addition of the ABC 75 alcohol license as stated by Keith Vohr, a shareholder In the NBBC, "the Idea of adding alcohol service.Is to stay competitive and Improve the restaurant." Additionally, the applicant represented "We have from day one attempted to be more of a restaurant than a bar." And "We are not and do not have any desires to become a nightclub..." And Roz Salomone, the owner of NBBC stated "l live In the area and will do everything possible to maintain harmony." And Mike Madlock, vice president of NBBC, represented "As a local resident, I want to keep peace in the neighborhood. One of the problems that existed in the past Is being taken care of with the closing of Snug Harbor and the Cannery Restaurant." (Above quotes from Planning Commission minutes August 5, 1999 and "Supplemental Information for Agenda Item No. 17 dated 9/13/99. Both documents are enclosed). Upon the representations of the applicant, the Planning Commission and the California Coastal Commission Imposed conditions upon the applicant's "Use Permit:" The Planning Commission and the California Coastal Commission anticipated the "parade of horrlbles" With respect to the neglectful behavior of the NBBC, however, after Planning Commission denial and'an appeal by the NBBC; the City Council approved the NBBC request. The City Council did not fully consider the needs of the Cannery Village "mixed use" community In transition and was over optimistic with respect to Exhibit No. 1 -it- the operators of the NBBC and the adverse Impact of the NBBC to the health, safety, peace, morals, comfort and general welfare of the community. ERROR IN "USE PERMIT": The California Coastal Commission imposed conditions on the NBBC. The conditions are Incorporated In the "Coastal Development Permit" dated January 21, 1994. (Copy enclosed) Under "Special Conditions" item 1. "Deed Restriction Limiting Daytime Use" specifically states "... no more than 1,500 square feet of service area of the subject restaurant/brewpub shall be open before 5 P.m." The California Coastal Commission, at it's meeting In July 1993, made a determination that the offstte parking agreement between the NBBC and the City of Newport Beach "would conflict with the public use of the same spaces prior to the hour of 5 p.m. and therefore took action to modify the approval, subject to four conditions ... 4) that the City will agree to enforce the restrictions of the area of service (the 1500 square feet being used prior to 5 p. m.) ". (quote from the City of Newport Beach Council meeting minutes of September 27,1993 volume 47 pages 253 & 254 (copy enclosed)} Furthermore, When Mayor Turner opened the public hearing on "Use Permit" number 3465, he specifically stated "reduce the allowable daytime "net public area" to 1500 square feet before 5A0 p.m." (Council Meeting minutes Volume 47 page 253 item 9). "James Person, representing the applicant, stated they feel this Is a reduction of Intensity of use from the time It was approved by the City Council last March; however they do agree to the conditions of approval Imposed by both the City and the Coastal Commission." (Council Meeting minutes September 27, 1993 Volume 47 page 254). The "Use Permit" as executed on September 13,1999 (copy enclosed) mistakenly, In condition number 6, only restricts the 1500 square feet of net public area devoted to daytime use on Monday through Friday. It does rwt Include Saturday and Sunday which was a specific condition of the California Coastal Commission and the City Council. We are unable to find any evidence to the contrary. Therefore, we request a review of "Use Permit" 3485 to correct the serious error In the wording of the "Use Permit" and the Planning Commission needs to review the "Use Penult" to ensure that the health, safety, peace, morels, comfort and general welfare of the community are protected. JURISDICTION-and C NTROL The City of Newport Beach has jurisdiction over the NBBC and Is obligated to enforce the conditions of the "Use Permit" Imposed by the City of Newport Beach and the California Coastal Commission. The City of Newport Beach has control over the NBBC and may review the "Use Permtr under section (K) of sold permit. N. The Planning Commission may add or modify conditions of approval to this use permit upon a determination that this use permit causes Injury, or Is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. . • atu _,t ! u I "IrAhl . ti The Newport Beach Police Department has been called repeatedly to correct infractions and disturbances by the NBBC. The police department generally responds to the complaints by residents, property owners and business persons. It Is clear the police department Is "numb" and the neighborhood Is "frustrated and outraged" from the frequent Infractions and disturbances; however, It N not acceptable that most police officers cannot do very much to resolve the complaints and verbally respond to the neighborhood by saying "you should not live next to a bar." We respect the �� Z authority of the Police Department; however, the rights of all parties deserve the protection afforded by the applicable codes and laws. SPECIFIC CRITICAL VIOLATIONS: The NBBC blatantly violates, on a continual basis, several conditions of the "Use Permit" Residents, property owners and business persons have attempted to effectuate responsible co-operation and adherence to the "Use Permit" by way of open dialogue with the owners and management of the NBBC. The dialogue falls on deaf ears. No change has occurred. A copy of the "Use Permit" Is enclosed and Incorporated with this document The specific violations are as follows: 1 Condition 6. The NBBC operates In a net public area greater than 1,500 square feet prior to 5 pm daily. Routinely (weekends), and during special events sponsored by the NBBC (televised sporting events, e.g. college sports, Super Bowl and World series, to mention a few) there Is total disregard for this condition. 2. Condition 9. The operation of the NBBC and the service of alcoholic beverages Is not ancillary to the primary food service operation. 3. Condition 10. The NBBC Is a °bar, cocktalt lounge, or other use serving alcoholic beverages... 4. Condition 17. The NBBC routinely cooks with a BBQ outside the front door (by the parking lot) on Saturdays and Sundays. Patrons and employees are permitted to consume alcoholic beverages In the parking lot during the "food service" operation from the BBQ. 5. Condition 0. The NBBC has failed to correct objectionable conditions that constitute a nuisance In the parking areas, sidewalks, alleys and areas surrounding the alcoholic beverage outlet and adjacent properties. a. The NBBC allows a noisy °cue -up" line In the parking lot in the day and night which can swell to 75 patrons, or more, waking to gain entrance to the establishment. The patrons "soream and yell' In a party atmosphere waiting to gain entrance. b. There are no toilet facilities for the crowd. The patrons routinely vomit, urinate and defecate In the surrounding residences and business properties. o. Patrons have been observed in various sexual acts In the stairways and corners of adjacent properties. Panties and bras are often.found on the adjacent properties In the mornings. d. Destructlon, by the drunken patrons; to private property and .the. residences and businesses Is a common occurrence. e. Since.smoking Is not permitted In the building, patrons are Instructed and permitted to.smoke tobacco In the parking lot. The patrons continue the "party atmosphere" with no regard for the peace or general welfare of the neighbors. L Patrons loiter In the parking lot and adjoining areas, "screaming and yelling" sometimes for hours after the establishment closes. This prevents residents from sleeping In their homes usually until 3 am on Friday and. Saturday and i am on many weekdays. The loitering of over -served patrons often erupts Into fights and confrontation. i 1'� r g. The trash containers are full and left open. The disposal of "hops and barley from the brewing operation are left open for the birds to eat at their leisure. The odor Is disgusting. The procedure of "cleaning up" the bar operation results In bottles and trash being dumped by employees well after the NBBC hours of operation have expired. 6. Condition E. The parking lot and surrounding areas are riddled with litter and trash which requires the residents and business owners to pick up trash continually to maintain an acceptable environment. 6. Condition F. The employees of the NBBC do not receive their certified training as required by the "Use Permit." The NBBC allows unbearable conditions to exist, all of which are critical violations of the "Use Permit." The NBBC has no regard for their neighbors or neighborhood: In the spirit of "peaceful coexistence" and "civility" the City of Newport Beach, the Alcohol and Beverage Control, The California Coastal Commission and the Newport Beach Police Department must act promptly and effectively to restore order to the neighborhood. Sincerely, The Cannery Village Concerned co: Alcohol and Beverage Control California Coastal Commission Uq Exmrr `B" FINDINGS AND CONDITIONS FOR APPROVAL FOR USE PERMIT No. 3485 (AMENDED) APPROVED BY CITY COUNCIL 09/13/1999 FINDINGS: i Z4747 1. The Land Use Element of the General Plan designates the site for 'Retail and Service Commercial" uses and a restaurant/brewpub is considered a permitted use within this designation. 2. The project is located within the Cannery Village/McFadden Square Specific Plan (SP -6) - Specialty Retail (SR) District that permits eating and drinking establishments with a use permit. 3. On -sale alcoholic beverage outlets are permitted with the approval of a use permit. 4. This project has been reviewed, and it has been determined that it is categorically exempt from the requirements of the California Environmental Quality Act under Class 1 (Existing Facilities). 5. The approval of the amendment to Use Permit No. 3485 to allow a full on -sale alcoholic beverage service will not, under the circumstances of the case, be detrimental to the health, safety, peace, morals, comfort and general welfare of persons residing or working in the neighborhood or be detrimental or injurious to property or improvements in the neighborhood or the general welfare of the City, for the following reasons: ■ The restaurant /brewpub use is compatible with the surrounding commercial and nearby residential uses since eating and drinking establishments are typically allowed in mixed commercial districts. ■ Conditions have been added to address potential problems associated with traffic, parking, trash disposal, odors, and unsightly conditions. ■ A Condition has been added to require a special events permit for any event or promotional activity outside the normal operational characteristics of this restaurant business. Exhibit No. 2 b. The proposed project is consistent with the purpose and intent of Chapter 20.89 of the Zoning Code (Alcoholic Beverage Outlets) for the following reasons: ■ The convenience of the public will be served by the sale of distilled beverages in a restaurant/brewpub setting. The project is in an area where the crime rate exceeds the citywide average by more than 20 %. However, there is no evidence that this high crime rate is attributable to the proposed project. The number of alcohol licenses per capita in the reporting district and adjacent reporting districts is above the average for Orange County. However, the project has the only alcohol license for a brewpub, and the convenience of the public can be served by the sale of distilled spirits in a restaurant/brewpub setting. The percentage of alcohol - related arrests in the reporting district in which the project is proposed and in the adjacent reporting district is higher than the percentage of alcohol - related arrests citywide. However, there is no evidence that the alcohol- related arrests are attributable to the project. ■ No day care centers, places of religious assembly, park and recreation facilities, or schools are located in the vicinity of the project site. Residential uses are located in the vicinity of the project site. However, the project has been conditioned so as to address any potential impacts. 1. The proposed development shall be in substantial conformance with the approved site plan, floor plan and elevations, except as noted below. 2. That a covenant or other suitable, legally binding agreement shall be recorded against the off -site parking lot assuring that all of the requirements of Section 20.63.080 (I) of the Municipal Code, will be met by the current and future property owners. Said covenant or agreement may include provisions for its future termination at such time as the development on the building site is removed or at such time as the floor area devoted to the restaurant/brewpub reverts back to a base FAR use. 3. The applicant shall provide a minimum of one parking space for each 50 square feet of net public area before 5:00 p.m. and one parking space for each 40 square feet of net public area after 5:00 p.m. in conjunction with the restaurant/brewpub. 4. An amended off -site parking agreement shall be approved by the City Council, guaranteeing that a minimum of 41 parking spaces shall be provided on property ilk iii located on .Lots 18 -21 and portions of Lots 17 and 22, Block 230, Lancaster's Addition, for the duration of the existing and proposed uses located on Parcel 1, Parcel Map 92 -40 (Resubdivision No. 527). 5. The property owner shall pay for 29 in -lieu parking spaces in the Cannery Village Municipal Parking Lot on an annual basis for the nighttime operation (after 5:00 p.m.) of the restaurant/brewpub use as agreed upon by the Sales Agreement between the City of Newport Beach and the property owner. 6. The net public area of the restaurant/brewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 p.m.) shall be limited to 1,500 square feet. The balance of the net public area shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m. daily. 7. The hours of operation for the restaurant/brewpub shall be limited to the hours between 6:00 a.m. and 11:00 p.m. Sunday through Thursday and between 6:00 a.m. and 1:00 a.m. on Friday and Saturday. 8. All employees shall park either in the privately owned off -site parking area or in one of the municipal parking lots in the area. 9. The operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant. 10. The approval of this use permit is for a restaurant /brewpub and shall not be construed as the approval of a bar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service hours (food products sold or served incidentally to the sale or service of alcoholic beverages shall not be deemed as constituting regular meal service) nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and/or dancing. 11. No outdoor loudspeakers or paging system shall be permitted in conjunction with the proposed location. 12. A washout area for refuse containers shall be provided in such a way as to allow direct drainage into the sewer system and not into the Bay or storm drains, unless otherwise approved by the Building Department. 13. Kitchen exhaust fans shall be designed to control smoke and odor to the satisfaction of the Building Department. 14. All mechanical equipment and trash areas shall be screened from surrounding public streets and alleys and adjoining properties. 15. The development standards regarding walls surrounding the restaurant site and underground utilities shall be waived. t l-f iv 16. Should prerecorded music be played within the restaurant facility, such music shall be confined to the interior of the building, and all doors and windows shall be kept closed while such music is played. 17. A special events permit is required for any event or promotional activity outside the normal operational characteristics of this restaurant business that would attract large crowds, involve the sale of alcoholic beverages, include any form of on -site media broadcast, or any other activities as specified in the Newport Beach Municipal Code . to require such permits. 18. Should this business be sold or otherwise come under different ownership, any fixture owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing company. STANDARD CITY REQUIREMENTS: A. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. B. Signs and displays shall not obstruct the sales counter, cash register, seller and customer from view from the exterior. C. Loitering, open container, and other signs specified by the Alcoholic Beverage Control Act shall be posted as required by the ABC. D. The applicant shall take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, alleys and areas surrounding the alcoholic beverage outlet and adjacent properties must be taken during business hours if directly related to the patrons of the subject alcoholic beverage outlet. E. The exterior of the alcoholic beverage outlet shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. F. All owners, managers and employees serving and/or selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. To qualify to meet the requirements of this section a certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service or other certifying/licensing body, which the State may designate. The establishment shall comply with the requirements of this section within 180 days of the issuance of the certificate of occupancy. E, v it Or G. The project.will comply with the provisions of Chapter 14.30 of the Newport Beach Municipal Code for commercial kitchen grease disposal. H. All signs shall conform to the provisions of Chapter 20.67 of the Municipal Code. I. This use permit for an alcoholic beverage outlet granted in accordance with the terms of this chapter shall expire within 12 months from the date of approval unless a license has been issued or transferred by the California State Department of Alcoholic Beverage Control prior to the expiration date. J. Coastal Commission approval shall be obtained prior to issuance of any building permits. K. The Planning Commission may add to or modify conditions of approval to this use permit upon a determination that this use permit causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. vi bit No. 2 0 54ANK 1 y( Planning Commission i Wng February 18, 1993 Agenda Item No. CITY OF NEWPORT BEACH TO: Planning Commission FROM: Planning Department SUBJECT: Use Permit No. 3485 (Public Hearing) Request to permit the establishment of a combination restaurant /brewpub with on -sale beer and wine, on property located in the "Specialty Retail' area of the Cannery Village /McFadden Square Specific Plan. The proposal also includes: the establishment of an outdoor patio dining area; the use of 29 previously approved in -lieu parking spaces located in the Cannery Village Municipal Parking Lot; the amendment of a previously approved off -site parking agreement so as to increase the number of privately owned off -site parking spaces to 41 spaces; and the approval of a transfer of development rights from the privately owned off -site parking area to the restaurant site. LOCATION: Parcel 1, Parcel Map 92 -40 (Resubdivision No. 527) (restaurant site); and portions of Lots 17 and 22 and Lots 18 -21, Block 230, Lancaster's Addition (off -site parking lot) located at 2920 Newport Boulevard, on the southeasterly corner of Newport Boulevard (northbound) and 30th Street, in Cannery Village. ZONE: SP -6 APPLICANT: Michael Madlock, Manhattan Beach OWNER: Dorothy Doan, Santa Ana Application This application involves a request to permit the establishment of a combination restaurant /brewpub with on -sale beer and wine, on property located in the "Specialty Retail' area of the Cannery Village /McFadden Square Specific Plan. The proposal also includes: the establishment of an outdoor patio dining area; the use of 29 previously approved in -lieu parking spaces located in the Cannery Village Municipal Parking Lot; the amendment of a previously approved off -site parking agreement so as to increase the number of privately owned off -site parking spaces to 41 spaces; and the approval of a transfer of development rights from the privately owned off -site parking area to the restaurant site. In accordance with the provision of the Cannery Village /McFadden Square Specific Plan, restaurants are permitted in the "Specialty Retail" area subject to the approval of a use permit in each case. Section 20.07.070 of the Municipal Code also provides that the transfer of development Z �� TO: Plan jg Commission - 2. rights between two properties shall be subject to a use permit in each case. Use permit procedures are set forth in Chapter 20.80 of the Municipal Code. EnvironmentaU%nificance This project has been reviewed, and it has been determined that it is categorically exempt from the requirements of the California Environmental Quality Act under Class 1(Existing Facilities). Subject PrWerly and Surrounding Land Uses The subject property is comprised of two parcels of land. Parcel No. 1 contains a 7,276± sq.ft. commercial building with the Pelican Market on the ground floor (now vacant), offices on the second floor and 2 on -site parking spaces. Parcel No. 2 is a privately owned off -site parking area containing 41 parking spaces which the property owner has under a long term lease. To the north, across 30th Street is an automobile repair facility, a mixed commercial /residential development, a vacant lot and a stained glass shop; to the east is the Cannery Village Municipal Parking Lot; to the south, across a 14 foot wide alley is the Cafe Looma Restaurant (now vacant); and to the west, across Newport Boulevard are a variety of commercial uses. �. -, At its meeting of July 15, 1976, the Planning Commission approved Site Plan Review No. 1, which permitted the construction of the existing commercial building which at the time, was on property located in a Specific plan Area where a specific plan had not been adopted. In such cases, any new development is subject to the approval of a Site Plan Review. Said approval also included a recommendation to the City Council to approve an off -site parking agreement so as to provide a minimum of 29 parking spaces on the adjoining parcel behind the building. It should be noted that the parking area at the rear of the building includes 2 on -site spaces and 41 off -site spaces. At the same meeting, the. Planning_Commission approved Resubdivision No. 527, which permitted the establishment of a single building site for the two story commercial building and eliminated interior lot lines where two lots previously existed. The actions of the Planning Commission was taken with the findings and subject to the conditions of approval set forth in the attached excerpts of the Planning Commission minutes dated July 15, 1976. At its nseeting of July 26, 1976, the City Council approved an off -site parking agreement which permitted the use of the off -site parking spaces described above. In 1988, the City of Newport Beach purchased the property identified on the attached Assessor's Map as the Cannery Village Municipal Parking Lot from the property owner. As a condition of the sale, the property owner was given an option to purchase 47 in -lieu parking spaces with the following stipulations: Z3 TO: Plan: g Commission - 3. 1. The option must be exercised within two years of the close of escrow (April 8, 1988). It is noted that this option has been exercised by the property owner. 2. The use of the in -lieu spaces is limited to businesses on the Cafe Looma and the Pelican Market sites. It is noted that the property owner committed 18 of the 47 in -lieu spaces to the reestablishment of the restaurant known as Cafe Looma at 2900 Newport Boulevard (Use Permit No. 3343). 3. Any use of the in -lieu spaces would be for nighttime only, from 5:00 p.m. to 6:00 a.m. 4. Any in -lieu spaces would be purchased at the current rate ($150.00 per space per year), but not to exceed $500.00 during the first five years (from the exercise of the option). During the second five years, the rate would be 75% of the current rate or $500.00, whichever is less. After ten years, the rate reverts to the current rate set forth in the Municipal Code at the time. Analysis The applicant is proposing to establish a combination restaurant and brewpub in the ground floor portion of the existing building. As represented in the attached floor plan for the facility, the brewery will occupy approximately 1,532± square feet (32 percent) of the total gross floor area of the restaurant which is approximately 4,776± square feet, including the outdoor dining area. The "net public area" of the restaurant will be 2,532± square feet including a 600± square foot outdoor dining area which is proposed in the front of the restaurant. The applicant has indicated that there will be approximately 10 employees on duty during peak hours of operation, and the hours of operation will be from 6:00 am. to 11:00 p.m. Sunday through Thursday and from 6:00 am. to 2:00 a.m. on Friday and Saturday. Beer and wine will also be served. No live entertainment is proposed. A letter from the applicant describing the operation is attached for Commission review. Conformance with the—General Plan and the LocaLC_oastal Program Land Use Plan The Land Use Element of the General Plan and the Local Coastal Program Land Use Plan designate the site for "Retail and Service Commercial" use. The proposed restaurant is a permitted use within this designation. Although the proposed brewery is not specifically listed as a permitted use in the "Retail and Service Commercial" area, it occupies only 32 percent of the total floor area of the facility; therefore, it is staffs opinion that it is clearly an incidental use which is ancillary to the primary restaurant use and is therefore a permitted use. The Land Use Element also establishes area specific land use policies throughout the City. These "area" policies set a floor area ratio (F.A.R.) development limit of 0.5/0.75 FAR on 4` 7 i Z� TO: Plann...g Commission - 4. the subject property. Based on this requirement, the Base Development Allocation for Parcel 1 which is developed with the commercial building, is 0.5 times the site area or 4,159± square feet (8,319± sq.ft. x 0.5 = 4,159± sq.ft.). As indicated previously, the gross floor area of the existing building on Parcel 1 is 7,276± square feet or .87 FAR; therefore, the existing structure is nonconforming relative to allowable Floor Area Ratio. It is also noted that the proposed restaurant is classified as a Reduced FAR use and will occupy an existing commercial space previously used as a retail market. In cases such as this, where a commercial building is to be occupied by a combination of a Base FAR use (offices), a Reduced FAR use (restaurant), and a Maximum FAR use (brewery), Section 20.07.040 of the Municipal Code provides that the Base Development Allocation shall not be exceeded by the sum of the weighted square footages of each type of use. Weighted square footages are determined by multiplying the gross floor area of a given use by a weighted factor of 1.67 for Reduced FAR uses, 1.0 for Base FAR uses and 0.5 for Maximum FAR uses. The following table sets forth the weighted development for each type of uses within the proposed project: Type Use Souare Footage x Weighting Factor = Weighted Development Office 3,100± sq.ft. x 1.0 = 3,100± sq.ft. Restaurant 3,244± sq.ft. x 1.67 = 5,417± sq.ft. Brewery 1,532± sq.ft. x 0.5 = 766± sq.ft. Total Weighted Development 9,283± sq.ft. Previous Weighted Development 7.276 ±sq.ft. Net Increase In Weighted Development 2,007± sq.ft. As indicated in the above table, the establishment of the proposed restaurant and brewpub will increase the weighted development on the property by 2,007± square feet. Inasmuch as Parcel 1 is nonconforming with regards to Floor Area Ratio, Section 20.07.070 G of the Municipal Code requires the elimination of the nonconforming FAR in conjunction with a transfer of development rights; and further, that the gross floor area following the intensity transfer shall not exceed the base development allocation permitted by the Code. In light of this requirement, it is necessary for the property owner to record a covenant or agreement which transfers 5,124± square feet of the 6,603± square feet (13,206± sq.ft. x 0.5 = 6,603± sq.ft.) of development rights of Parcel 2 to Parcel 1, thereby bringing the weighted development proposed on Parcel 1 to within the allowable 0.5 Base Development Allocation. Such a covenant may be worded so as to allow for a reversion of the development rights should the development on Parcel 1 be removed or the proposed restaurant be replaced by a Base FAR uses such as retail or service commercial, or offices. Off- Street Parking Requirement Based on the current restaurant parking requirement of one parking space for each 40 square feet of "net public area ", 64 parking spaces are required for the subject restaurant use (2,532± sq.ft. 40 sq.ft.= 633 or 64 spaces). It should be further mentioned that pursuant to Section 20.30.035 B(4) of the Municipal Code, the Planning Commission may iZ54z:!r TO: Plan. g Commission - 5. increase or decrease the parking requirement of a restaurant within a range of one parking space for each 30 sq.ft. of "net public area" (85 parking spaces) or one parking space for each 50 sq.ft. of "net public area" (51 spaces). It is staffs opinion that one parking space for each 40 square feet of "net public area" will be adequate in this case, inasmuch as there is no dancing or live entertainment proposed with the restaurant. In addition to the restaurant parking, the existing remaining offices on the second floor of the building require one parking spaces for each 250 square feet of floor area, or 12 parking spaces (3,000± sq.ft. _ 250 sq.ft. = 12 spaces). Therefore, the combined day -time parking requirement for the existing and proposed uses is 76 parking spaces. Inasmuch as a majority of the office uses on the property are closed after 5:00 p.m. during the week and on weekends, the nighttime and weekend parking requirement for the property is only 64 spaces. Proposed Off - Street Parking As indicated in the previous Background Section, there are 2 on -site parking spaces and 41 off -site parking spaces which are currently leased by the property owner and are for the exclusive unrestricted use of the proposed restaurant/brewpub and the second floor offices within the subject building. In addition, the property owner has 29 remaining in -lieu parking spaces in the Cannery Village Municipal Parking Lot; however, such parking may only be used between 5:00 p.m. and 6:00 a.m. Therefore, the subject property has 43 daytime spaces and 72 nighttime spaces after 5:00 p.m. Inasmuch as the second floor offices will be closed after 5:00 p.m. Monday through Friday and all day on Saturday and Sunday, the applicant is proposing to maintain a shared parking arrangement in order to satisfy the off - street parking requirement for the restaurant/brewpub. The following table sets forth the nighttime and daytime parking requirement for each use: Parkine ] Type Use Daytime Offices 12 spaces Restaurant 64 sac Total 76 spaces teauirement Nighttime and Weekends 0 spaces 44..snams 64 spaces Parking Provided Daytime Nighttime and Weekends 12 spaces 0 spaces 1 spaces 72 spaces 43 spaces 72 spaces As indicated in the above figures, the available daytime parking for the restaurant is deficient by 33 parking spaces (64 spaces - 31 spaces = 33 spaces). Based on the available daytime parking for the restaurant (31 spaces) only 1,240 square feet of "net public area" would be permitted before 5:00 p.m. (31 spaces x 40 sq.ft. per space = 1,240 sq.ft.). In order to allow a greater amount of daytime "net public area" in the restaurant, the property owner is proposing to ask the City Council to remove the daytime restriction on the in -lieu parking spaces, which would provide 29 additional daytime parking spaces. Such an approval would increase the restaurant daytime parking to 60 spaces (31 private spaces + 10 TO: Plamwig Commission - 6. 29 in -lieu spaces = 60 spaces) which would allow up to 2,400 square feet of "net public area" in the proposed restaurant during the day. This means that 132± square feet of the proposed "net public area" could not be used until the second floor offices closed at 5:00 p.m. In previous similar situations, the Planning Commission has required a suitable portion of the "net public area" to be physically separated and identified for nighttime use only. Staff has included such a condition in the attached Exhibit "A" for approval. Proposed Amendment to Of--Site Parking Agreement As mentioned previously, the use of the privately owned off -site parking area was approved in conjunction with the original construction of the subject building and includes the provision,of a minimum of 29 parking spaces. Inasmuch as all 41 of the off -site parking spaces will be required as a result of this application, the property owner is required to amend its off -site parking agreement so as to reflect the current number of required parking spaces. Staff has no objections to an increase in the number off -site parking spaces associated with this application. Restaurant Development Standards Chapter 20.72 of the Municipal Code contains development standards for restaurants to ensure that any proposed development will be compatible with adjoining properties and streets. Said development standards include specific requirements for building setbacks, parking and traffic circulation, walls surrounding the restaurant site, landscaping, exterior illumination, signing, underground utilities, and storage. Section 20.72.130 of the Municipal Code states that any of the above mentioned development standards for restaurants may be modified or waived if such modification or waiver will achieve substantially the same results and will in no way be more detrimental to adjacent properties or improvements than will the strict compliance with the standards. Should the Planning Commission wish to approve this application, staff is of the opinion that the on -site development standards as they apply to walls surrounding the restaurant site, and underground utilities should be waived because of the existing developed nature of the site. Specific Findings Section 20.80.060 of the Newport Beach Municipal Code provides that in order to grant any use permit, the Planning Commission shall find that the establishment, maintenance or operation of the use or building applied for will not, under the circumstances of the particular case, be detrimental to the health, safety, peace, morals, comfort, and general welfare of persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City. Section 20.07.070 J of the Municipal Code provides that certain findings shall be made in conjunction with the approval of a transfer of development rights. Finally, Section 20.63.045 B requires certain findings to be made in conjunction with the approval of an off -site parking agreement. Should the Planning Commission wish to approve Use Permit No. 3485, the findings and conditions of approval set forth in the attached Exhibit Z7� TO: Pl& . ig Commission - 7. "A" are suggested. Should the Planning Commission wish to deny the application, the findings and conditions of approval set forth in the attached Exhibit 'B" are suggested. PLANNING DEPARTMENT JAMES D. HEWICKER, Director By William Ward Senior Planner Attachments: Exhibit "A" Exhibit "B" Vicinity Map Assessor's Parcel Map showing location of restaurant site, off -site parking area and Cannery Village Municipal Parking Lot Letter from applicant describing the brewpub concept of operation Excerpts of the Planning Commission Minutes dated July 15, 1976, pertaining to Site Plan Review No. 1 and Resubdivision No. 527 Site Plan, Floor Plan and Elevations NEWPORT BEACH BREWING COMPANY Newport Beach Brewing Company, Inc. "(the Operators) ", is a California Corporation formed to construct and operate a restaurant /brew -pub to be called Newport Beach Brewing Company, which will be located at 2920 Newport Boulevard in Newport Beach, California. The restaurant will be open from 6:00 a.m. to ll:00 p.m., five days a week and 6:00 a.m. to 2:00 a.m., Friday and Saturday. There will be no live entertainment. The exterior of the restaurant /brew -pub will offer a person passing -by the "old world" ambiance of a fun and energetic eating and drinking establishment. This highly desirable Cap Cod designed building is highlighted with a random pattern brick front, shingle roof, gables, window walk, and painted wood trim. The focal point of the restaurant /brew -pub will be the custom made copper accented stainless steel beer brewing equipment that will be placed behind the bar and will rise to the ceiling Of the building. These brewing tanks and storage vats will be cleaned and polished daily to keep their luster and appeal. The Operators of the restaurant /brew -pub are working carefully with their experienced architect and design team to select a theme that will create a warm, yet vibrant environment for patrons to enjoy. An emphasis for the interior of the restaurant will be comfortable stained hard -wood and brick that offer a rustic old world charm and ambiance. The bar is expected to be stained and shined dark hardwood and cooper with a brass foot rail that will give the immediate area an "upper- class" feel. There will be bountiful seating at the bar and on bar stools directly across from the bar. There will be seating at tables throughout the remainder of the restaurant, as well as -on -the patio. The walls will be brick and decorated with memorabilia from the brewing industry with particular emphasis on California pre - prohibition breweries, early Newport Beach and brew -pubs and micro - brewers currently operating in California and the Pacific Northwest. The restaurant's menu will feature classic, as well as, up- to -date cuisine that will appeal to the modern palate. Appetizers will include buffalo wings, beer battered fried onion rings, and "Armadillo eggs" (stuffed jalapeno peppers). A visible custom brick wood fired pizza oven will be the focal point as a number of individual gourmet wood fired pizzas will be served. Newport Beach's "finest" fresh ground burger will also head the entrees with other choices including a "naked" chicken breast sandwich, and a selected number of pasta dishes. A wide variety of salads will be offered either before a meal or as a meal themselves and "World Championship" homemade chili will be served in a similar manner. There will also be an assortment of fresh baked desserts available to patrons of the establishment. The restaurant /brew -pub intends to offer a full service wine and beer bar with the emphasis on premium beer that will be brewed on the premises. There will usually be four to six beers available that were brewed on site. The range of beers will include ales, pilsners, lagers and stouts. The brewery will produce approximately 16 varieties of beer each year, including such special seasonal flavors as Octoberfest Pilsnor and Christmas Ale. The beer should present itself as quite a value to the customer, since a 16 -ounce glass of premium, rich beer will cost justly slightly more than a 12 -ounce bottle of mass produced domestic beer. The beer brewed on the premises will easily overmatch both domestic and imported beers in quality and taste. A claim such as this can be made since the ingredients will be of the highest quality and procured under the direct supervision of the brew - master and the beer will be served as soon as it has completed fermenting, giving the consumer a fresh taste without any preservatives. The bar will also offer a full range of soft drinks, wines, as well as bottled domestic beer with a limited selection of bottled imported alcoholic and non - alcoholic beers. The Operators intend to construct the restaurant /brew -pub at 2920 Newport Boulevard which is the corner of Newport Boulevard and 30th Street between Newport Boulevard and Villa Way in Newport Beach, California (the "Premises "). The Premises is located within the "Cannery Village" area of Newport Beach which is intended to serve as an active pedestrian- oriented specialty retail /restaurant area with a wide range of visitor- serving, neighborhood commercial, and marine - related uses permitted. AK [3c MINUTES CITY OF NEWPORT BEARguary 18, 1993 ROLL CALL INDEX 12. That the applicant shall obtain Coastal Commission approval of this application prior to the recordation of the parcel map or issuance of a building permit. 13. That this resubdivision shall expire if the map has not been recorded within 3 years of the date of approval, unless an extension is granted by the Planning Commission. i ! f Use Permit No. 3485 (Public Hemjng) item No. Request to permit the establishment of a combination UP3485 restaurant /brewpub with on -sale beer and wine, on property located in the "Specialty Retail' area of the Cannery Approved Village /McFadden Square Specific Plan Area. The proposal also includes: the establishment of an outdoor patio dining area; the use of 29 previously approved in -lieu parking spa ces located in the Cannery Village Municipal Parking Lot; the amendment of a previously approved off -site parking agreement so as to increase the number of privately owned off -site parking spaces to 41 spaces; and the approval of a transfer of development rights from the privately owned off -site parking area to the restaurant site. LOCATION: Parcel 1, Parcel Map 92-40 (Resubdivision No. 527) (restaurant site); and. portions of Lots 17 and 22 and'tots 18 -21, Block 230, Lancaster's Addition (off -site parking lot) located at 2920 Newport Boulevard, on the southeasterly corner of Newport Boulevard (northbound) and 30th Street, in Cannery Village. ZONE: SP -6 APPLICANT: Michael Madlock, Manhattan Beach OWNER: Dorothy Doan, Santa Ana -14- "r 3 CORDUSSiO»xs MINUTES CITY OF NEWPORT BEARgar, 18 1993 FA ROLL CALL INDEX James Hewicker, Planning Director, explained that the applicant is proposing to utilize 29 in -lieu parking spaces that are located in the Cannery Village Municipal Parking Lot for the daytime operation of the subject facility. The subject Municipal Parking Lot is not currently occupied 100 percent 12 months of the year;. however, during the summer months it is relatively heavily used by recreational users and by employees at City Hall. The Municipal Parking Lot also has blue parking meters that were formerly located in front of City Hall. The blue meters allow individuals who purchase parking permits to use the parking spaces at less cost than the standard parking meters. If the Commission would approve the applicant to use the 29 in -lieu parking spaces during the day, the Commission would be displacing individuals who are currently using the parking lot. He questioned if the Commission wants to displace recreational users of the subject Municipal parking lot to allow for anew commercial use coming into the City. 1 In response to questions posed by Commissioner Glover, Mr. Hewicker replied that signs would not be placed in the parking lot so as to restrict the 29 parking spaces for the restaurant use only. In reference to her questions regarding Condition No. 6, Exhibit "A", William Laycock, Current Planning Manager, explained that if the Commission does not allow the applicant to utilize the Municipal Parking Lot spaces prior to 5:00 p.m. then the restaurant would be limited to 1,240 square feet of "net public area" until 5:00 p.m. If the Commission ,and the City Council allowed the daytime use of the in -lieu parking spaces for the restaurant facility, a "net public area" of 2,400 square feet would be permitted prior to 5:00 p.m. He indicated that 132 square feet of "net public area" would still have to be closed in the restaurant prior to 5:00 p.m. even if the 29 in -lieu parking spaces would be allowed in the Municipal Parking Lot. The public hearing was opened in connection with this item, and Mr. James Person appeared before the Planning Commission on behalf of the applicant. He concurred with the findings and conditions in Exhibit "X; however, he requested that Condition No. 7, Exhibit "A" be amended to state that the operational hours -15- �3 FA COADUSSIONERS EL MINUTES CITY OF NEWPORT BEAfr&,,,,, 1Q 1001 3 MOLL CALL INDEX would be between 6:00 a.m, and 12:00 midnight Sunday through Thursday and between 6:00 a.m. and 2:00 a.m, on Friday and Saturday. Mr. Person stated that the applicant would close a portion of the restaurant if the City Council does not approve the daytime use of the in -lieu parking spaces. He indicated that the public is walking and bicycling to many of the establishments and parking has not become a big factor in the area on Sunday afternoons. He explained that he recently observed that the majority of the blue meter parking spaces were being used and only three silver meter spaces were being used in the Cannery Village Municipal Parking Lot. In response to a question posed by Chairman Edwards, Mr. Person explained that parking spaces are not a big problem in the adjacent area during the summer months. Mr. Rob Friedman, co -owner of the property located at 405, 407, i and 409 - 30th Street, and a resident at 405 - 30th Street, appeared before the Planning Commission. He expressed his concerns regarding the noise emitting from the outdoor patio area of the facility, and the types of signage on the establishment. Mr. Friedman indicated that there would not be a parking problem as long as the subject facility does not have exclusive rights to parking spaces in the Municipal Parking Lot. In response to a question posed by Commissioner Gifford, Mr. Friedman replied thar he did not know the hours of operation of the commercial establishments on his property. In response to a question posed by Commissioner Pomeroy, Mr. Hewicker explained that the Sign Code permits 200 square feet of signage per - frontage of a building, and he stated that the City does not allow blinking or flashing signs. Mr. Friedman and Mr. Hewicker discussed Mr. Friedman's concerns regarding the noise. Mr. Hewicker referred to Condition No. 24, Exhibit "A ", stating that the Commission may call up the use permit for review if it is determined that there are changes in the use that are detrimental to the community. -16- �i 3 Lxmlk CITY OF NEWPORT BEACJI MINUTES 14 1001 1'MUl Y41� 1V, lll✓ ROLL CALL INDEX There being no others desiring to appear and be heard, the public hearing was closed at this time. Motion * Motion was made and voted on to approve Use Permit No. 3485 Ayes * subject to the findings and conditions in Exhibit "A", and to Absent amend Condition No. 7 as requested. MOTION CARRIED. Findings: 1. That the proposed application is consistent with the Land Use Element of the General Plan, the Local Coastal Program Land Use Plan, and is compatible with surrounding land uses. 2. That adequate parking is available for the proposed use. 3. That the proposed development will not have any significant environmental impact. 4. That the Police Department does not anticipate any problems associated with the proposed restaurant /brewpub. 5. That the transfer of development intensity will accommodate the efficient use of land within an existing development comprised of two interdependent parcels. 6-.- That the transfer of - development intensity will not adversely affect the aesthetics of the area. 7. That the proposed transfer of development intensity will not result in a physical increase in commercial floor area within the subject property and therefore, will not create an abrupt change in scale between the existing development and development in the surrounding area. 8. That the proposed transfer of development intensity will not result in the impairment of public views. F _17- i34 COMMISSIONERS MINUTES CITY OF NEWPORT BEArj&,a.1. 799 5 ROLL CALL INDEX 9. The proposed transfer of development intensity will not result in a net negative impact on the circulation system. 10. That the off site parking lot is so located as to be useful in connection with the proposed uses on the subject property. 11. Parking on the off -site parking lot will not create undue traffic hazards in the surrounding area. 12. Ownership of the off -site parking lot is constituted by leasehold interest for a remaining period of 59 years by the property owner of the building site. 13. The owner and the City, upon the approval of the City Council, will execute a written instrument, approved as to form and content by the City Attorney, providing for the maintenance of the required off -street parking on the designated property for the duration of the proposed uses on the building site. 14. That the approval of Use Permit No. 3485 will not, under the circumstances of this case, be detrimental to the health, safety, peace, morals, comfort and general welfare of persons residing and working in the neighborhood or be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City. Conditions: 1. That the proposed development shall be in substantial conformance with the approved site plan, floor plan and elevations, except as noted below. 2. That a covenant or other suitable, legally binding agreement shall be recorded against the off -site parking lot assuring that all of the requirements of Section 20.07.070 J of the Municipal Code, will be met by the current and future property owners. Said covenant or agreement may include provisions for its future termination at such time as -18- 5 s y . d City Council Meeting March 8. 1993 Agenda Item No. CITY OF NEWPORT BEACH TO: Mayor and Members of the City Council FROM: Planning Department SUBJECT: Amendment to an Off-Site Parkina Agre in Conjunction with a Proposed Restaurant /Brewoub Request to amend an existing off -site parking agreement and expand the daytime use of in -lieu parking spaces in the Cannery Village Municipal Parking Lot beyond the limits established by the sales agreement between the original property owner and the City, so as to allow the establishment of a restaurant/brewpub facility on the adjacent site (Use Permit No. 3485). LOCATION: Parcel 1, Parcel Map 92 -40 (Resubdivision No. 527) (restaurant site); and portions of Lots 17 and 22 and Lots 18 -21, Block 230, Lancaster's Addition (off -site parking lot) located at 2920 Newport Boulevard, on the southeasterly corner of Newport Boulevard (northbound) and 30th Street, in Cannery Village. ZONE: APPLICANT: _ . - .. OWNER: Application SP -6 Dorothy Doan, Santa Ana Same as Applicant This item involves a request to amend an existing off -site parking agreement and expand the daytime use of in -lieu parking spaces in the Cannery Village Municipal Parking Lot beyond the limits established by the sales agreement between the original owner and the City, so as to allow the establishment of a brew /pub on the adjacent site (Use Permit No. 3485). Off -site parking agreement procedures for Cannery Village are set forth in Section 20.63.045 B of the Municipal Code. ., , TO: City Councu - 2. l If desired, approve the proposed amendment to the off -site parking agreement related to Use Permit No. 3485 with the applicable findings recommended by the Planning Commission contained in the attached excerpt of the draft Planning Commission minutes dated February 18, 1993. 2. If desired, approve or deny the amendment to the sales agreement between the original owner and the City so as to extend the owners daytime use of in -lieu parking spaces in the Cannery Village Municipal Parking Lot. Background Relative to the Off -Site Parking Agreement At its meeting of February 18, 1993, the Planning Commission approved (6 Ayes, 1 Absent) Use Permit No. 3485 which permits the establishment of a combination restaurant/brewpub on property located at 2920 Newport Boulevard, in the Cannery Village /McFadden Square Specific Plan Area. The establishment of the restaurant/brewpub increases the off - street parking requirement for the subject property. The adjoining off -site parking lot located immediately east of the restaurant/brewpub property will provide additional required parking spaces. Said off -site parking lot is in separate ownership but is under long term lease by the property owner of the subject restaurant/brewpub site. The use of the privately owned off -site parking lot was approved in conjunction with the construction of the original building, and includes the provision of a minimum of 29 parking spaces. Inasmuch as all 41 of the off -site parking spaces will be required as a result of the approval of Use Permit No. 3485, the property owner is required to amend the off -site parking agreement so as to reflect the current number of required parking spaces. Background Relative to In -Lieu Parking Spaces The Planning Commission's approval of Use Permit No. 3485 also includes Condition No. 6 which limits the daytime "net public area" of the restaurant/brewpub to 1,240± square feet (approximately half of the proposed "net public area "), unless the applicant obtains the City Council's approval for the daytime use of the in -lieu parking spaces which were granted to the subject property owner by the City, in conjunction with the City's purchase of the property which is now developed as the Cannery Village Municipal Parking Lot. Under the terms of the sales agreement, Dorothy Doan is granted the option to purchase up to 47 in- lieu parking permits for the Cannery Village Municipal Parking Lot, provided that such parking spaces may be used for the benefit of the uses located on the Pelican Market site (the proposed restaurant /brewpub facility) and the adjoining Cafe Looma Restaurant site, and provided further that such parking may only be used from 5:00 pan to 6:00 a.m. The daytime restriction on the use of in -lieu parking spaces was to insure that the Cannery Village Municipal Parking Lot would be available to daytime businesses and visitors to Cannery Village and the beach. 43 TO: City Council = 3. Planning Commission In conjunction with its approval of Use Permit No. 3485, the Planning Commission recommended that the City Council approve the amendment to the off -site parking agreement and to allow the daytime use of the in -lieu parking spaces upon the approval of the City Council. Staff has attached a copy of the Planning Commission staff report and an excerpt of the Draft Planning Commission Minutes dated February 18, 1993 for the City Council's information. Respectfully Submitted, PLANNING DEPARTMENT JAMES D. HEWICKER, Director � �. WR W. William Ward Senior Planner Attachments for City Council only: Planning Commission Staff Report dated February 18, 1993 with attachments. Excerpt of the Draft Planning Commission Minutes dated February 18, 1993. Site Plan, Floor Plan and Elevations. ITY OF NEWPORT BEACH CaMIL MEMBERS Motio All MINUTES 8, 1993 INDEX Ayes those items removed: ORDINANCES FOR INTRODIICTION Pass to 2nd reading on March 22, 993 - 2. Removed from the Consent Cal RESOLUTIONS FOR ADopn 3. Removed from the Ccnsent Calendar. CONTRACTS &GRH@ENTS 4. Removed from the Consent 5. USE PERMIT NO. 3485 - Approve Amendment U P 348` to existing off -site parking agreement (88) and expand the daytime use of in -lieu parking spaces in the Cannery Village Municipal Parking Lot beyond the limits established by the sales agreement between the original property owner and the City, so as to allow the establishment of a restaurant/brewpub facility on the adjacent site located at 2920 Newport Boulevard and 30th Street. [Report from the Planning Department] - For Denial by the City Manager: (36) California State Department of CA State Transportation regarding claim for Dpt Trat rsonal injuries by Mary Sharon 0 ien, alleging claimant stepped into an rea of a pothole and slipped and fell t corner of Pacific Coast Highway and Ma write Avenue on May 2, 1992. Laurie A. Doran alleging damage to Doran vehicle as result of hitting pothole and series o roken asphalt at Jamboree and Bristol on anuary 14, 1993. Federal Inauranc Company alleging Federal property damage as result when City Company put high pressure se adjacent to residence, causing 1 00 gallons of sewage to overflow into home at 1521 Rings Road no December 18, 992. Scott Casey Flanegia alleging is we Flanegit fell off while being had ad by Police Department at 55 and 405 F sways on February 3, 1993; se ing reimbursement. Volume 47 - Page 34 .ty er tsp Int 13% 2. Dolores Otting, Harbor Hill, addressed G Gangs /Cj the Council, stating that she had hopped H Helicopt the State and cities could do aomething out the gang problem, such as to P vide more trade school opportunitiaa. She also expressed concern about the expe a of the helicopter program in Newpor Beach, and suggested the use of a memor dum of understanding between the Citie of Costa Mesa and Newport Beach to continue the helicopter service. CONSENT CALENDAR n x x T The following items were d, except for .ty er tsp Int 13% x f City Council M�.`Ling Sotember 27. 1993 Item CITY OF NEWPORT BEACH TO: Mayor and Members of the City Council FROM: Planning Department SUBJECT: Use Permit No tsdl Request to revise a previously approved use permit that permitted the establishment of a restaurant/brewpub with on -sale beer and wine and outdoor seating, on property located in the Specialty Retail area of the Cannery Village /McFadden Square Specific Plan. The proposal involves a request to rescind the City Council's previous action that permitted the - expanded use of daytime in -lieu parking spaces in the Cannery Village Municipal Parking Lot which were to be used in conjunction with the daytime operation of the proposed restaurant/brewpub at 2920 Newport Boulevard. The proposal also includes a request to change the daytime parking requirement for the facility from one parking space for each 40 square feet of "net public area," to one parking space for each 50 square feet of "net public area "; and reduce the allowable daytime "net public area" to 1,500 square feet before 5;00 p.m LOCATION: Parcel 1, Parcel Map 92 -40 (Resubdivision No. 527) (restaurant site); and portions of Lots 17 and 22 and Lots 18 -21, Block 230, Lancaster's Addition (off -site parking lot) located at 2920 Newport Boulevard, on the southeasterly corner of Newport Boulevard (northbound) and 30th Street, in Cannery Village. ZONE: SP -6 APPLICANT: Michael Madlock, Manhattan Beach OWNER: Dorothy Doan, Santa Ana Application This is a request to amend a previously approved use permit that permitted the establishment of a restaurant/brewpub with on -sale beer and wine and outdoor seating, on property located in the Specialty Retail area of the Cannery Village /McFadden Square Specific Plan. The approval also included: the use of 27 previously approved in -lieu parking spaces located in the Cannery Village Municipal Parking Lot; the continued use of 29 off - site parking spaces on privately owned property located directly east of the subject property; and the approval of a transfer of development rights from the privately owned off -site parking area to the restaurant site. The proposed amendment involves the following revisions to the use permit so as to make it consistent with the requirements of the AJ Iy0 TO: City CouncL -2. California Coastal Commission's approval: a request to change the daytime parking requirement for the facility from one parking space for each 40 square feet of "net public area," to one parking space for each 50 square feet of "net public area' ; reduce the allowable daytime "net public area" to 1,500 square feet; and rescind that portion of the previous approval which allowed the applicant to use 27 in -lieu parking spaces in the Cannery Village Municipal Parking Lot before 5:00 p.m. At its meeting of February 18, 1993, the Planning Commission approved (6 Ayes, 1 Absent) Use Permit No. 3485 which permits the establishment of a combination restaurant /brewpub on property located at 2920 Newport Boulevard, in the Cannery Village /McFadden Square Specific Plan Area. The Planning Commission also accepted an amendment to an existing„ .. . off -site parking agreement so as to provide 41 parking spaces within an adjoining privately owned parking lot. Said off -site parking lot is in separate ownership but is under long term lease by the property owner of the subject restaurant/brewpub site. The use of the privately owned off -site parking lot was approved in conjunction with the construction of the original building, and includes the provision of a minimum of 29 parking spaces. Inasmuch as all 41 of the off -site parking spaces will be required as a result of the approval of Use Permit No. 3485, the property owner is required to amend the off -site parking agreement so as to reflect the current number of required parking spaces.. The Planning Commission's approval of Use Permit No. 3485 also included Condition No. 6 which limits the daytime "net public area" of the restaurant/brewpub to 1,240± square feet (approximately half of the proposed "net public area "), unless the applicant obtains the City Council's approval for the daytime use of the in -lieu parking spaces which were granted to the subject property owner by the City, in conjunction with the City's purchase of the property which is now developed as the Cannery Village Municipal Parking Lot. Under the terms of the sales agreement, Dorothy Doan (subject property owner) is granted the option to purchase up to 47 in -lieu parking permits for the Cannery Village Municipal Parking Lot, provided that such parking spaces may be used for the benefit of the uses located on the Pelican Market site (the proposed restaurant/brewpub facility) and the adjoining Cafe Looma Restaurant site, and provided further that such parking may only be used from 5:00 p.m. to 6:00 am. The daytime restriction on the use of in -lice parking spaces was to insure that the Cannery Village Municipal Parking Lot would be available to daytime businesses and visitors to Cannery Village and the beach. Staff has attached a copy of the Planning Commission's staff report for Use Permit No. 3485, dated February 18, 1993. At its meeting of March 8, 1993, the City Council unanimously approved an amendment to the sales agreement between Dorothy Doan and the City, so as to allow her the daytime use of the in -lieu parking spaces in the Cannery Village Municipal Parking Lot. The Council also approved the amended off -site parking agreement for the privately owned parking spaces located directly adjacent to the restaurant/brewpub site. In accordance with the City Council's original approval, the proposed restaurant/brewpub was allowed to have 2,400 square feet of daytime "net public area" with the provision of 31 privately owned parking Al 1y[ TO: City Counts, -3. spaces and 29 in -lieu spaces in the Cannery Village Municipal Parking Lot, for a total of 60 off - street parking spaces. The allowable daytime "net public area" was based on a parking formula of one parking space for each 40 square feet of "net public area" (60 parking spaces x 40 sq.ft. = 2,400 sq.ft. of "net public area "). At its meeting of July 13 -16, 1993, the Coastal Commission approved Use Permit No. 3485 (Coastal Permit Application No. 5 -93 -137, copy attached). However, said approval did not allow the daytime use of the in -lieu parking spaces in the Cannery Village Municipal Parking Lot; therefore, the available daytime parking spaces for the subject project is only 31 spaces. Based on the available parking, the Coastal Commission limited the daytime "net - -public area" of the restaurant/brewpub ° to 1,500 square feet which is equivalent to - approximately one parking space for each 50 square feet of "net public area." The Coastal Commission also required: that the applicant record a deed restriction which will provide that no more than 1,500 square feet of service area shall be open before 5:00 p.m.; that the City Council rescind its previous action amending the sales agreement with Dorothy Doan so as to permit the daytime use of in -lieu parking spaces in the Cannery Village Municipal Parking Lot; and that the City of Newport Beach prepare a letter indicating that it agrees that the City's Code Enforcement Office will enforce the daytime public service area restriction of 1,500 square feet. Hold hearing; close hearing; if desired, approve Use Permit No. 3485 (Revised) with the findings and subject to the conditions of approval set forth in the attached Exhibit "A." Said action will: rescind the City Council's previous action that permitted the daytime use of 47 in -lieu parking spaces in the Cannery Village Municipal Parking Lot; reduce the allowable daytime "net public area" to 1,500 square feet; and revise the daytime parking requirement for the restaurant /brewpub to one parking space for each 50 square feet of "net public area." Staff has no objections to the requested revisions to Use Permit No. 3485 inasmuch as said revisions will result in a project that will have a less intensive daytime operation than was previously approved by the City Council. Respectively submitted, PLANNING DEPARTMENT JAMES D. HEWICKER, Director W. Williain Ward Senior ``t,✓ rYy m TO: City Counci. -4. Attachment: Exhibit "A" Vicinity Map Copy of the Planning Commission Staff Report dated February 19, 1993 with attachments Excerpt of the Planning Commission Minutes dated February 18, 1993 Coastal Commission Staff Report Site Plan Revised Floor Plan /v3 TO: City Council -5. EXHIBIT "A" FINDINGS AND CONDITIONS OF APPROVAL FOR USE PERMIT NO. 3485 (REVISED) Findinim 1. That the proposed application is consistent with the Land Use Element of the General Plan, the Local Coastal Program Land Use Plan, and is compatible with surrounding land uses. 2. That the approval of Use Permit No. 3485 (Revised) is necessary in order to make the City of Newport Beach's approval of the subject project consistent with the conditions of approval established by the-California Coastal Commission 3. That the approval of Use Permit No. 3485 (Revised) will allow the City of Newport Beach to monitor and thereby insure that the continued operation of the proposed restaurant/brewpub will be in accordance with the provisions of the approved coastal permit. 4. That adequate parking is available for the proposed use. 5. That the proposed development will not have any significant environmental impact. 6. That the Police Department does not anticipate any problems associated with the proposed restaurant/brewpub. 7. That the transfer of development intensity will accommodate the efficient use of land within an existing development comprised of two interdependent parcels. 8. That the transfer of development intensity will not adversely affect the aesthetics of the area. 9. That the proposed transfer of development intensity will not result in a physical increase in commercial floor area within the subject property and therefore, will not create an abrupt change in scale between the existing development and development in the surrounding area. 10. That the proposed transfer of development intensity will not result in the impairment of public views. 11. The proposed transfer of development intensity will not result in a net negative impact on the circulation system. 12. That the off- -site parking lot is so located as to be useful in connection with the proposed uses on the subject property. e� �a TO: City Councu -6. 13. Parking on the off -site parking lot will not create undue traffic hazards in the surrounding area. 14. Ownership of the off -site parking lot is constituted by leasehold interest for a remaining period of 59 years by the property owner of the building site. 15. The owner and the City, upon the approval of the City Council, will execute a written instrument, approved as to form and content by the City Attorney, providing for the maintenance of the required off- street parking on the designated property for the duration of the proposed uses on the building site. 16. That the approval of Use Permit No. 3485 (Revised) will not, under the circumstances of this case, be detrimental to the health, safety, peace, morals, comfort and general welfare of persons residing and working in the neighborhood or be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City. Conditions: 1. That the proposed development shall be in substantial conformance with the approved site plan, floor plan and elevations, except as noted below. 2. That a covenant or other suitable, legally binding agreement shall be recorded against the off -site parking lot assuring that all of the requirements of Section 20.07.070 J of the Municipal Code, will be met by the current and future property owners. Said covenant or agreement may include provisions for its future termination at such time as the development on the building site is removed or at such time as the floor area devoted to the restaurant/brewpub reverts back to a Base FAR use. 3. That the applicant shall provided a minimum of one parking space for each 50 square feet of "net public area" before 5:00 p.m. and one parking space for each 40 square feet of "net public area" after 5:00 p.m. in conjunction with the proposed restaurant /brewpub. 4. That an amended off -site parking agreement shall be approved by the City Council, guaranteeing that a minimum of 41 parking spaces shall be provided on property located on Lots 18 -21 and portions of Lots 17 and 22, Block 230, Lancaster's Addition, for the duration of the existing and proposed uses located on Parcel 1, Parcel Map 92-40 (Resubdivision No. 527). 5. That the property owner shall pay for 29 in -lieu parking spaces in the Cannery Village Municipal Parking Lot on an annual basis for the nighttime operation (after 5:00 p.m.) of the restaurant/brewpub use as agreed upon by the Sales Agreement between the City and the property owner. � 5 TO: City Councii -7. 6. That the "net public area" of the restaurant/brewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 p.m.) shall be limited to 1,500 sq.ft. The balance of the "net public area" shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m. daily. 7. That the hours of operation for the restaurant/brewpub shall be limited to the hours between 6:00 a.m, and 11:00 p.m. Sunday through Thursday and between 6:00 am. and 2:00 a.m. on Friday and Saturday. 8. That all employees shall park either in the privately owned off -site parking area or in one of the Municipal parking lots in the area -9. That all signs shall conform to the requirements of Chapter 20.06 of the Municipal Code. 10. That the operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant. 11. That no outdoor loudspeakers or paging system shall be permitted in conjunction with the proposed operation. 12. That a washout area for refuse containers be provided in such a way as to allow direct drainage into the sewer system and not into the Bay or storm drains, unless otherwise approved by the Building Department. 13. That grease interceptors shall be installed on all fixtures in the restaurant facility where grease may be introduced into the drainage systems in accordance with the provisions of the Uniform Plumbing Code, unless otherwise approved by the Building Department. 14. That kitchen exhaust fans shall be designed to control smoke and odor to the satisfaction of the Building Department. 15. That all mechanical equipment and trash areas shall be screened from surrounding public streets and alley and adjoining properties. 16. That the development standards regarding walls surrounding the restaurant site and underground utilities shall be waived. 18. That all improvements be constructed as required by Ordinance and the Public Works Department. 19. That the on -site parking, vehicular circulation and pedestrian circulation systems be subject to further review by the City Traffic Engineer and that the parking lot be restriped as approved by the Traffic Engineer. TO: City Council -8. 20. That the required number of handicapped parking spaces shall be designated within the on -site parking area and shall be used solely for handicapped self - parking. One handicapped sign on a post and one handicapped sign on the pavement shall be required for each handicapped space. 21. That should any prerecorded music be played within the restaurant facility, such music shall be confined to the interior of the building, and all doors and windows shall-be kept closed while such music is played. 22. That arrangements be made with the Public Works Department in order to guarantee satisfactory completion of the public improvements, if it is desired to obtain a Building Permit prior to completion of the public improvements. 23. That a handicap ramp be constructed at the alley intersection at Newport Boulevard per City Standards. 24. That the Planning Commission may add or modify conditions of approval to this use permit, or recommend to the City Council the revocation of this use permit, upon a determination that the operation which is the subject of this use permit causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. 25. This use permit shall expire unless exercised within 24 months from the date of approval as specified in Section 20.80.090A of the Newport Beach Municipal Code. �-7 CITY OF NEWPORT BEACH COUNCIL MEMBERS \R S' September 27, 1993 ROLL CPo1 Motis% All A} MINUTES i! U/P 3485(R) Measure A uU to modify the approval, subject to four conditions: 1) that the applicant record a deed restriction which would allow no more than 1500 square feet of service area being used prior to 5 p.m.; 2) that 41 off -site parking spaces will be maintained between 6 a.m. and 5 p.m. daily and 67 off -site parking spaces between 5 p.m. and 2 a.m., (the 41 off- site parking spaces between 6 a.m. and 5 p.m. are on privately owned property under the same ownership immediately adjacent to the brevpub and the additional spaces would be in the Municipal lot and would be used after 5 p.m.); 3) that the City Council rescind its earlier action allowing the use of the off -site parking spaces in the Municipal lot prior to 5 p.m.; 4) that the City will agree to enforce the restrictions on the area of service (the 1.500 square feet being used prior.tu..5 P.M.). James Person, representing the applicant, addressed the Council and stated they feel this is a reduction of intensity in use from the time it was approved by the City Council last March; however, they do agree to the conditions of approval as Imposed by both the City and the Coastal Commission. Hearing no one else wishing to address the Council, the public hearing was closed. x Motion was made to by Council Member Debay to aworova IIse Permit No. 3485 as (Revised) d a suLiece �w t an— a% ayCr set orth in the attae5ea �h— �b�t�" .�- RRMOVRD EM M CONSENT CALENDAR Hone. PUBLIC S The olloving persons addressed the Counc! and expressed their reasons for opposin Measure A on the November ballot - oposed Open Space Assessment District: Stuart William 1748 Bayport Way Helen Rieron, 3 1 Fourth Avenue Tom and Hike Sull an, 121 Marine Avenue Nary Ana Towersey, 501 Rings place, member of the Newwpport onservancy Board of Directors, addrease the Council to promote the "Walk on t Wild Side" event which is scheduled or Sunday. October 10 and begins at th Castaways site at 16th Street and Dover anus and concludes at the same site for sunsat picnic and other attractions for enjoyment. Registration formavailable at the libraries and \blic Parks, Beaches 6 Recreation Depar Volume 47 - Page 254 i! U/P 3485(R) Measure A uU Exhibit No. 3 BcRN k, -1 ' STATE OF CALIFOItNIA -THE RESOURCES AGENCY PETE WILSON, Gmm , i CALIFORNIA COASTAL COMMISSION SOUTH COAST AREA Page 1 of 3 245 W. BROADWAY, STE. 380 Date: 1 -21 -94 P.O. BOX IASO Permit No. 5 -93 -137 LONG BEACH, CA 90802-4116 (310) 5905071 COASTAL DEVELOPMENT PERMIT On July 15. 1993 , the California Coastal Commission granted to this permit subject to the attached Standard and Special conditions, for development consisting of: Conversion of an existing 4200 square foot former market /deli (currently vacant) to a restaurant/brew pub and the addition of 600 square feet of outdoor dining. Existing 3100 square foot, second floor office will remain. more specifically described in the application file in the Commission offices. The development is within the coastal zone in Orange County at 2920 N export Blvd,. Newport Beach • Issued on behalf of the California Coastal Commission by PETER DOUGLAS Executive Director By: �--- Title: Staff Analyst The undersigned permittee acknowledges receipt of this permit and agrees to abide by all terms and conditions thereof. The undersigned permittee acknowledges that Government Code Section 818.4 which states in pertinent part, that: "A public entity is not liable for injury caused by the issuance... of any permit.. " applies to the issuance of this permit. IMPORTANT: THIS PERMIT IS NOT VALID UNLESS AND UNTIL A COPY OF THE PERMIT WITH THE SIGNED ACKNOWLEDGEMENT HAS BEEN RETURNED TO THE COMMISSION • OFFICE. 14 Cal. Admin. Code Section 13158(a). Date A6: 4/88 Signature of Permittee A. Page 2 of _3_ 0 Permit No. 5-93 -137 1. Notice of$Ppgpt nda ��knowledgment. The permit is not valid and development shall not commence until a copy of the permit, signed by the permittee or authorized agent, -acknowledging receipt of the permit and acceptance of the terms and conditions, is returned to the Commission office. 2. Expiration. If development has not commenced, the permit will expire two years from the date on which the Commission voted on the application. Development shall be pursued in a diligent manner and completed in a reasonable period of time. Application for extension of the permit must be made prior to the expiration date. 3. Compliance. All development must occur in strict compliance with the proposal as set forth in the application for permit, subject to any special conditions set forth below. Any deviation from the approved plans must be reviewed and approved by the staff and may require Commission approval. 4. Interpretation. Any questions of intent or interpretation of any condition will be resolved by the Executive Director or the Commission. 5. Inspections. The Commission staff shall be allowed to inspect the site and the project during its development, subject to 24 -hour Mvance notice. 6. Assignment. The permit may be assigned to any qualified person, provided assignee files with the Commission an affidavit accepting all terms and conditions of the permit. 7. Terms and Conditions Run with the Land. These terms and conditions shall be perpetual, and it is the intention of the Commission and the permittee to bind all future owners and possessors of the subject property to the terms and conditions. Prior to issuance of the Coastal Development Permit, the applicant shall execute and record a deed restriction, in a from and content acceptable to the Executive director, which shall provide that no more than 1,500 square feet of service area of the subject restaurant/brewpub shall be open before 5 p.m. The document shall run with the land, binding all successors and assigns, and shall be recorded free of prior liens. Page 3 5- 93-137 2. 'Main The proposed project includes the use of Off —Site parking for which the applicant has entered into long —term parking agreements. Prior to issuance of the Coastal Development Permit, the applicant shall execute and record a deed restriction, in a form and content acceptable to the Executive Director, which shall provide that the applicant shall maintain, for the life of the development, a total of 41 off —site parking spaces between 6:00 a.m. and 5:00 p.m. daily, and a total of 67 off —site parking spaces between 5:00 p.m. 2:00 a.m. daily. 3. Recission of Amendment to Parking Agreement: Prior to issuance of the Coastal Development Permit, the applicant shall submit evidence that the Amendment to Parking Agreement approved by the City of Neworport Beach on February 18, 1993, has been rescinded by the City Council. Additionally, prior to issuance of the Coastal Development Permit, the applicant shall submit, for the review and approval of the Executive Director, a letter from the City of Newport Beach indicating that the City agrees that the City's Code Enforcement will enforce the puoblip service area restrictions described in ecial Condition 1. 1u , FiTdTlaTs. Prior to issuance of the Coastal Development Permit, the applicant shall submit, for the review and approval of the Executive Director, final floor plans illustrating the area proposed for the day use restriction imposed in special conditional, above. 1033F MVAM i r53 STATE OF CALIFORNIA —THE RESWCES AGENCY CALIFORNIA COASTAL COMMISSION SOUTH COAST AREA ' w. RRGAtwYAr, sTE. Aso RGx 1498 G EEACH, CA 9=4416 Pic) eoosorl I W PETE WILSON, oaw i Filed: 4/19/93 49th Day: 6/7/93 180th Day: 10/16/93 Staff: MV —L Staff Report: 8/16/ 3 Hearing Date: 9/16/93 Comm. Action on Findings: STAFF REPORT: REVISED FINDINGS APPLICATION NO.: 5- 93- 137 APPLICANT: The Doan Trust AGENT: Nancy Lucast PROJECT LOCATION: 2920 Newport Blvd., Newport Beach, Orange County. PROJECT DESCRIPTION: Conversion of an existing 4200 square foot former market /deli (currently vacant) to a restaurant /brew pub and the addition of 600 square feet of outdoor dining. Existing 3100 square foot, second floor office will remain. COMMISSION ACTION: Approval with Conditions. DATE OF COMMISSION ACTION: July 15, 1993 . COMMISSIONERS ON PREVAILING SIDE: Commissioners Wright, Yokoyama, Calcagno, Cervantes, Doo, Stevens, Moulton— Patterson, Malcolm, Neely, and Chairman Gwyn. SUMMARY OF STAFF RECOMMENDATION: The staff recommends that the Commission adopt the following revised findings in support of the Commission's action on July 15, 1993 approving with conditions the permit for a restaurant /brewpub. STAFF RECOMMENDATION: The staff recommends that the Commission adopt the following resolution: I. Approval with Conditions. The Commission hereby r9 ants a permit, subject to the conditions below, for the proposed development on the grounds that the development will be in conformity with the provisions of Chapter 3 of the California Coastal Act of 1976, will not prejudice the ability of the local government having jurisdiction over the area to prepare a Local Coastal Program conforming to the provisions of Chapter 3 of the Coastal Act, and will not have any significant adverse impacts on the environment within the meaning of the California Environmental Quality Act. 15q 5 -93 -137 Revised Findings Page 2 I1. Standard gonditions. 1. Notice of Receipt and Acknowledgment. The permit is not valid and development shall not commence until a copy of the permit, signed by the permittee or authorized agent, acknowledging receipt of the permit and acceptance of the terms and conditions, is returned to the Commission *office. 2. Expiration. If development has not commenced, the permit will expire two years from the date this permit is reported to the Commission. Development shall be pursued in a diligent manner and completed in a reasonable period of time. Application for extension of the permit must be made prior to the expiration date. 3. Compliance. All development must occur in strict compliance with the proposal as set forth in the application for permit, subject to any special conditions set forth below. Any deviation from the approved plans must be reviewed and approved by the staff and may require Commission approval. 4. Interpretation. Any questions of intent or interpretation of any condition will be resolved by the Executive Director or the Commission. 5.' Inspections. The Commission staff shall be allowed to inspect the site and the project during its development, subject to 24 —hour advance notice. 6. Assignment. The permit may be assigned to any qualified person, provided assignee files with the Commission an affidavit accepting all terms and conditions of the permit. 7. Terms and-Conditions Run with the Land. These terms and conditions shall be perpetual, and it is the intention of the Commission and the permittee to bind all future owners and possessors of the subject property to the terms and conditions. III. Special. Conditions: 1. Deed Restriction Limiting Daytime Use Prior to issuance of the coastal development permit, the applicant shall execute and record a deed restriction, in a form and content acceptable to the Executive Director, which shall provide that no more than 1,500 square feet of service area of the subject restaurantlbrewpub shall be open before 5 p.m. The document shall run with the land, binding all successors and assigns, and shall be recorded free of prior liens and encumbrances which the Executive Director determines to affect said interest.. 2. Maintenance of Off —Site Parking The proposed project includes the use of off —site parking for which the applicant has entered into long —term parking agreements. Prior to issuance of the coastal development permit, the applicant shall execute and record a deed restriction, in a form and content acceptable to the Executive Director, which shall provide that the applicant shall maintain, for the life of the development, a total of 41 off —site parking spaces between 6:00 a.m. and 5 :00 p.m. daily, and a total of 67 off —site parking spaces between 5:00 p.m. and 2:00 a.m. daily. The document shall run with the land, binding all successors and assigns, and shall be recorded free of prior liens and encumbrances which the Executive Director determines to affect said interest. 0• 0 0 �5 5 -93 -137 Revised Findings Page 3 3. Recision of'Amendment to Parking Agreement Prior to issuance of the coastal development permit, the applicant shall submit evidence that the Amendment to Parking Agreement approved by the City of Newport Beach on February 18, 1993, has been rescinded by the City Council. Additionally, prior to issuance of the coastal development permit, the applicant shall submit, for the review and approval of the Executive Director, a letter from the City of Newport Beach indicating that the City agrees that the City's Code Enforcement Department will enforce the public service area restrictions described in special condition 1. 4. Submittal of Final Plans Prior to issuance of the Coastal development permit, the applicant shall submit, for the review and approval of the Executive Director, final floor plans illustrating the area proposed for the day use restriction imposed in special condition 1, above. IV. FINDINGS AND DECLARATIONS The Commission finds and declares as follows: A. Protect Description The applicant proposes to convert an existing 4200 square foot former market /deli (currently vacant) into a restaurant /brew pub and to add 600 square feet of outdoor dining. The existing 3100 square foot, second floor office space will remain. The public service area of the proposed restaurant will be 2800 square feet including the proposed outdoor patio dining area. The applicant proposes 72 parking spaces, 29 of which are located in a public parking.lot. The subject site is located in the Cannery Village /McFadden Square area of the Balboa Peninsula in Newport Beach. The land use designation of the subject site is Retail and Service Commercial. The proposed restaurant use is consistent with that designation. B. Public Access /Parking Section 30210 of the Coastal Act requires maximum access and recreation be provided for the general public. Section 30252 of the Coastal Act states, in part: The location and amount of new development should maintain and enhance public access to the coast by (4) providing adequate parking facilities or providing substitute means of serving the development with public transportation. The subject site is located in an area that is historically popular with the beach going public. In addition to miles of wide sandy beach, the Balboa Peninsula contains many restaurants and visitor serving retail areas as well as the two piers and the fun zone. Because of the area's popularity with the general public it often reaches peak capacity during prime visitor periods. �G� 5 -93 -137 Revised Findings Page 4 The area within the existing building proposed for restaurant use is currently • vacant. The former use was a market /deli. The proposed development represents an intensification of use, triggering the need to evaluate parking. When development does not provide adequate parking, patrons of that development are forced to use parking that is available to the general public. This results in patrons of private uses competing with beach goers for available public parking spaces and reduced parking supply for access and recreational uses. Lack of public parking can deter the public from using certain beach areas and other visitor amenities. The Balboa Peninsula, particularly in the McFadden Square area, includes many pre — Coastal Act buildings which were constructed without adequate parking. That adds to the general parking shortage in the area. Consequently, it is important that all new development provide adequate parking so as not to displace public beach goer and visitor parking. The Commission has adopted regional guidelines that provide guidance when determining the parking need for various uses. In past actions the Commission has consistently applied the parking ratios described in the regional guidebines for new development in the Balboa Peninsula area. For restaurant use the guidelines recommend a ratio of one parking space for every fifty square feet of public service area. For general office use, the Commission's guidelines recommend a ratio of one space for every 250 square feet of gross floor area. The City of Newport Beach zoning requirements for parking, in this case, are consistent (for office uses) or more restrictive (for restaurant use: one space for every forty square feet of public service area). Both the City and the Commission apply a similar formula for determining parking demand in the subject area. This indicates that the ratio is appropriate in defining specific parking needs for this area. The City's certified Land Use Plan requires that all new development shall provide adequate off street parking to meet the requirements of the City's zoning code. In this case the City has found that the amount of parking provided, including the use of existing spaces within a public parking lot, meets the zoning code requirements. However, Coastal Act Section 30252 requires that new development provide adequate parking in a manner which maintains and enhances coastal access. In this case because the project proposes to use existing spaces within a public parking lot during peak visitor use periods, the Commission cannot find that adequate parking will be provided. Where there is no certified total Local Coastal Program, the Commission must find a proposed project consistent with the chapter three policies of the Coastal Act. The certified Land Use Plan, when there is a conflict, serves as guidance only. Based on the above guidelines ratio, the parking demand generated by the proposed project is 56 spaces. In addition, the existing office space on the second floor generates a demand of 13 spaces, creating a total demand of 59 spaces. There are two spaces on —site. Additionally the applicant has a long —term lease for the use of 41 spaces in an adjacent private parking lot. The applicant proposes to provide a total of 72 parking spaces. However, of that number, 29 are to be acquired through a lease agreement with the City to . use a parking lot that is currently available to the public. Without the public parking lot spaces, the proposed project would be deficient by 26 spaces, a significant shortfall. 5 -93 -137 Revised findings Page 5 • Coastal Development Permit No. 5 -88 -252 (City of Newport Beach) allowed construction of the public parking lot in question. In approving that development, the Executive Director determined that parking was a severe problem in the area and that the parking lot would provide 45 additional public parking spaces to be used for visitor serving uses and businesses. The current applicant sold the area now containing the public parking lot to the City in 1988. As part of the sale agreement, the current applicant retained the right to use as many as all of the.spaces provided that, among other requirements, the private use be restricted to night time (5 p.m. to 6 a.m.) use. for the use of these spaces the applicant is required to pay the City a $500.00 per space annual fee. On August 9, 1989 the Commission concurred with the Executive Director's determination to approve Coastal Development Permit No. 5 -89 -512 (Doan) allowing construction of a 2375 square foot restaurant at 2900 Newport Blvd. Under that approval, the restaurant was allowed to use 18 in —lieu spaces in the same public parking lot now proposed for the same use. However in that case the public parking spaces were available for the private development only after 5 p.m. Beach and visitor parking demand generally drops after 5 p.m. The operating hours of the proposed restaurant will be 6 a.m. to 11 p.m. Sunday through Thursday and 6 a.m. to 2 a.m. Friday and Saturday. These operating hours result in parking demand that will conflict with prime beach qnd visitor use (i.e. daytime hours), a situation that did not occur under the project approved under 5 -89 -512 for the same applicant. In this case, the • conflict results in inadequate parking for the proposed project prior to 5 p.m. The applicant has an agreement with the City allowing the use of the public parking lot for the existing commercial building between the hours of 5:00 p.m. to 6:00 a.m. However, under the current proposal the daytime restriction would be removed and parking for the proposed restaurant in the public parking lot would be allowed during daytime hours. The end result would be that the applicant may use all 45 spaces of the public lot from 5 p.m. to 5 a.m. and 29 or 64% of the spaces during the day. The City staff's report to the Planning Commission for action on the Amendment to an Off —Site Parking Agreement and ruary 18, 1993, states: "The daytime restriction on the use of in —lieu parking spaces was to insure that the Cannery Village Municipal Parking Lot would be available to daytime businesses and visitors to Cannery Village and the beach." Minutes from the Planning Commission hearing (February 18, 1993) on the Use Permit for the proposed project quote City staff as follows: "The subject Municipal Parking Lot is not currently occupied 100 percent 12 months of the year; however, during the summer months it is relatively heavily used by recreational users and by employees at City Hall." At the February 18, 1993 Planning Commission meeting, City staff questioned the appropriateness of displacing recreational users of the Municipal parking lot to allow for a new commercial use. The City's certified Land Use Plan states that the Balboa Peninsula experiences significant summer visitor traffic. The certified LUP also states: 9 IV. 5 -93 -137 Revised Findings Page 6 There is also a difference in the peak -hour traffic for weekdays between winter and summer. A comparison of peak -hour traffic shows that it is most heavily affected on routes serving Balboa Peninsula during the summer. Usually, daily peak -hour traffic occurs between 5:00.p.m. and 6:00 p.m. At several locations during the summer, primarily in the Balboa Peninsula area, the peak hour occurs at midday, either between noon and 1:00 p.m. or between 1:00 p.m. and 2:00 p.m. The LUP further states: Parking is a major issue in the Newport Beach Coastal Zone. Observations indicate that the current supply is generally adequate in the winter for both residents and visitors. During the summer the demand for parking increases. On peak weekends during the summer, parking demand is highest in the beach areas. The LUP also includes the City's policy to provide the greatest number of on- street parking spaces possible. It can be inferred that the City's intent is to provide the greatest number of up blic (not Just on- street) parking spaces possible. Clearly the need for the provision of adequate parking with new development is an issue in the City and particularly on the Balboa Peninsula. As proposed, the project would result in the loss of 29 parking spaces currently available to the public in an area where parking demand for visitor uses and beach access is great. Without the use of the spaces available in the public lot, the subject site is deficient 26 parking spaces. Use of a public parking lot to serve private development would result in a direct loss of parking to the beach going public. Allowing the development to go forward as proposed with such a significant shortfall of parking spaces would also result in loss of parking for the beach going public. The loss would result from patrons of the proposed development seeking public spaces when the other parking associated with the new development is at capacity. However, if the project is conditioned to limit the public service area of the restaurant to no more than 1500 square feet prior to 5 p.m., the restaurant's need for the public parking spaces during peak beach and visitor use periods would be eliminated. With the public service area limited to 1500 square feet prior to 5 p.m., the parking demand of the proposed restaurant /brewpub would be lessened to 30 spaces. Additionally, the existing second floor office space will require 13 parking spaces, creating a total demand of 43 spaces. Without the use of the public parking 'lot, 43 parking spaces are provided. When Coastal Development Permit No. 5 -89 -512 (Ooan) was approved, the Executive Director determined that because the public parking lot was not necessary to serve the development before 5 p.m., adequate parking was provided. The special condition required in the subject application is consistent with that past action. To assure that the public area limitation prior to 5 p.m. is enforced for the life of the proposed project, the hours limitation must be recorded as a deed restriction. A second special condition is required to assure that the development will maintain off -site parking arrangements for the life of development since only 2 parking spaces are provided on -site. the i is 5 -93 -137 Revised Findings Page 7 • Additionally, to assure that the service area restriction is enforced, a special condition requiring evidence that the City Council has rescinded the Amendment to Parking Agreement which was approved February 18, 1993, must be submitted to the Executive Director. The Amendment to Parking Agreement allowed the daytime use of the public parking tot to serve the private development. Once rescinded, the applicant would not be allowed use of the public parking spaces prior to 5 p.m. Additionally, to assure that the restricted restaurant public area is enforced, thereby maintaining the lessened parking demand, the applicant must submit evidence that the City's Code Enforcement Department will enforce the public area restriction. The City's Code Enforcement Department regularly enforces similar restrictions imposed by the City. Therefore, the Commission finds, that as conditioned the project 1s consistent with Sections 30210 and 30252 of the Coastal Act regarding public access and recreation and the provision of adequate parking with new development. C. meat Coastal Program Section 30604(a) of the Coastal Act provides that the Commission shall issue a Coastal Development Permit only if the project will not prejudice the ability of the local government having jurisdiction to prepare a Local Coastal Program which conforms with the Chapter 3 policies of the Coastal Act. The Newport Beach Land Use Plan was certified on May 19, 1982. As conditioned to restrict the public service area until after 5 p.m., approval of the proposed development will not prejudice the City's ability to prepare a Local Coastal Program Implementation Plan for Newport Beach that 1s consistent with the Chapter 3 policies of the Coastal Act as required by section 30604(a). California Environmental Quality Act Section 13096(a) of the Commission's administrative regulations requires Commission approval of a Coastal Development Permit application to be supported by a finding showing the application to be consistent with any applicable requirements of the California Environmental Quality Act (CEQA). The proposed project is in an existing urbanized area with adequate services and utilities provided and so will not cause significant adverse impacts on the environment. Additionally, as conditioned, the proposed project will provide adequate parking and so will not interfere with public access in the area. Therefore, the Commission finds that, as conditioned,. the project 1s consistent with the requirements of the Coastal Act to conform to CEQA. 9326E �v " VICINITY FdAP 0 .YIF M/ I SP • •.., ti 1� ` H d w •• 0 •0 it 90-4 • w tgq� 1 t ♦ wr ♦ /) r Cl '�, p \\ NEWPORT BAN \N,.-/ y RIM./- ALL • DISTRICTING •� NFWDAQT OFArld — [ M� ASRO "k ags"CRUIL WrAt HILT 29MRS UL 0YrL[L �W ard Tm On* WAXPU UOU MWOM L De p+ in v. tr sa► ti.-Iw MAP 4"TWU 0961mm"" %mir 0amaa4 gum" commoon a.alYlap umm waLrarlro GEL aC an 0a@ mhl MAP 80. ddoE! 'PE2MIT N0.3485 5- 93-13']' f` f�� af llvr /V�XW eaw �i.s YI V"! LL IW i/nilllVOC /W/.iY i • 1 S • i r �. yy Y {VaH Excel+ 6 5- 93- 0�1 • � L o � � U n � 0 0 0�1 • � L o � � U n .i t 0 .r1�.. .N•.N N wm in .I.. os a d R o: tA� l ` Ex" I't Tj el 5 -93 -17 (Oq Newport Beach Brewing Company, Inc. "(the Operators)", is a California Corporation formed to construct and operate a restaurant /brew -pub to be called Newport Beach Brewing Company, which will be located at 2920 Newport Boulevard in Newport Beach, California. The restaurant will be open from 6:00 a.m. to 11: 00 p.m., five days a week and 6:00 a.m. to 2:00 a.m., Friday and Saturday. There will be no live entertainment. The exterior of the restaurant /brew -pub will offer a person passing -by the "old world" ambiance of a fun and energetic eating and drinking establishment. This highly desirable Cap Cod designed building is highlighted with a random pattern brick front, shingle roof, gables, window walk, and painted wood trim. The focal point of the restaurant /brew -pub will be the custom made copper accented stainless steel beer brewing equipment that will be placed behind the bar and will rise to the ceiling of the building. These brewing tanks and storage vats will be cleaned and polished daily to keep their luster and appeal. The Operators of the restaurant /brew -pub are working carefully with their experienced architect and design team to select a theme that will create a warm, yet vibrant environment for patrons to enjoy. An emphasis for the interior of the restaurant will be comfortable stained hard -wood and brick that offer a rustic old world charm and ambiance. The bar is expected to be stained and shined dark hardwood and cooper with a brass foot rail that will give- the immediate area an "upper - class" feel. There will be bountiful seating at the bar and on bar stools directly across from the bar. There will be seating at tables throughout the remainder of the restaurant, as well as on the patio. The walls will be brick and decorated with memorabilia from the brewing industry with particular emphasis on California pre - prohibition breweries, early Newport Beach and brew -pubs and micro - brewers currently operating In California and the Pacific Northwest. The`restaurant's menu will feature classic, as well as, up- to -date cuisine that will appeal to the modern palate. Appetizers will include buffalo wings, beer battered fried onion rings, and "Armadillo eggs" (stuffed jalapeno peppers). A visible custom brick wood fired pizza oven will be the focal point as a number of Individual gourmet wood fired pizzas will be served. Newport Beach's "finest" fresh ground burger will also head the entrees with other choices including a "naked" chicken breast sandwich, and a selected number of pasta dishes. A wide variety of salads will be offered either before a meal or as a meal themselves and "World IFxk.A- • Championship "'homemade chili will be served in a similar manner. There will also be an assortment of fresh baked desserts available to patrons of the establishment. The restaurant /brew -pub intends to offer a full service wine and beer bar with the emphasis on premium beer that will be brewed on the premises. There will usually be four to six beers available that were brewed on site. The range of beers will include ales, pilsners, lagers and stouts. The brewery will produce approximately- 16 varieties of beer each year, including such special seasonal flavors as Octoberfeat Pilanor and Christmas Ale. The beer should present itself as quite a value to the customer, since a 16 -ounce glass of premium, rich beer will cost justly slightly more than a 12 -ounce bottle of mass produced domestic beer. The beer brewed on the premises will easily overmatch both domestic and imported beers in quality and taste. A claim such as this can be made since the ingredients will be of the highest quality and procured under the direct supervision of the brew - master and the beer will be served as soon as it has completed fermenting, giving the consumer a fresh taste without any preservatives. The bar will also offer a full range of soft drinks, wines, as well as bottled domestic beer with a limited selection of bottled imported alcoholic and non - alcoholic beers. • The operators intend to construct the restaurant /brew -pub at 2920 Newport Boulevard which is the corner of Newport Boulevard and 30th Street between Newport Boulevard and Villa Way in Newport Beach, California (the "Premises "). The Premises is located within the "Cannery Village" area of Newport Beach which is intended to serve as an active pedestrian - oriented specialty retail /restaurant area with a wide range of visitor - serving, neighborhood commercial, and marine - related uses permitted. I�/ STATE OF CAUFORNIA -THE RESOURCES AGENCY CALIFORNIA COASTAL COMMISSION SOUTH COAST AREA 34S W. BROADWAY, STE. 380 P.O. BOX 1450 LONO BRACH. CA 908034416 (310) 3945071 I b PETE WRSON. Gam Filed: 4/19/93 49th Day: 6/7/93 180th Day: 10/16/93/ Staff: Mr Staff Report: 5/26/93 Hearing Date: 7/13 -16/93 Commission Actiq aY 3►vt1�Ni v�:� 1. uwxA!wt� O STAFF REPORT: REGULAR CALENO _ Oe:+� as Rc�or�sn• :sn:a�i . APPLICATION NO.: 5 -93 -137 -- grocVC APPLICANT: The Doan Trust AGENT: Nancy Lucasi J'�t PROJECT LOCATION: 2920 Newport Blvd., Newport Beach, Orange County. PROJECT DESCRIPTION: Conversion of an existing 4200 square foot former market /deli (currently vacant) to a restaurant /brew pub and the addition of 600 square feet of outdoor dining. Existing 3100 square foot, second floor office will remain. Lot area: 21,638 square feet Building coverage: 4,178 square feet Pavement coverage: 14,910 square feet Landscape coverage: 2,550 square feet Parking spaces: 72 Zoning: Retail & Service Commercial Plan designation: Retail & Service Commercial Ht abv fin grade: 31 feet LOCAL APPROVALS RECEIVED: Approval in Concept, City of Newport Beach; Use Permit No. 3485, City of Newport Beach. SUBSTANTIVE FILE DOCUMENTS: City Planning Commission Staff Report dated 2/18/93; Minutes from the City Planning Commission Meeting of 2/18/93; City Council Staff Report dated 3/8/93; California Coastal Commission's Adopted Regional Interpretive Guidelines for Orange County; City of Newport Beach certified Land Use Plan; 5 -88 -252 (City of Newport Beach); 5 -89 -512 (Doan). SUMMARY OF STAFF RECOMMENDATION: Staff is recommending approval with special conditions restricting the hours of operation to after 5 p.m. to avoid negative impacts on public access and recreation that may otherwise result from inadequate parking and to maintain off -site parking agreements. (Q 5 -93 -137. Page 2 STAFF RECOMMENDATION: The staff recommends that the Commission adopt the following resolution: I. ADDroval with Conditions. The Commission hereby rg_ants a permit, subject to the conditions below, for the proposed development on the grounds that the development will be in conformity with the provisions of Chapter 3 of the California Coastal Act of 1976, will not prejudice the ability of the local government having jurisdiction over the area to prepare a Local Coastal Program conforming to the provisions of Chapter 3 of the Coastal Act, and will not have any significant adverse impacts on the environment within the meaning of the California Environmental Quality Act. II. Standard Conditions. 1. Notice of Receipt and Acknowledgment. The permit is not valid and development shall not commence until a copy of the permit, signed by the permittee or authorized agent, acknowledging receipt of the permit and acceptance of the terms and conditions, is returned to the Commission office. 2. Expiration. If development has not commenced, the permit will expire two years from the date this permit is reported to the Commission. Development shall be pursued in a diligent manner and completed in a reasonable period of time. Application for extension of the permit must be made prior to the expiration date. 3. Compliance. All development must occur in strict compliance with the proposal as set forth in the application for permit, subject to any special conditions set forth below. Any deviation from the approved plans must be reviewed and approved by the staff and may require Commission approval. 4. Interpretation. Any questions of intent or interpretation of any condition will be resolved by the Executive Director or the Commission. 5. Inspections. The Commission staff shall be allowed to inspect the site and the project during its development, subject to 24 —hour advance notice. 6. Assignment. The permit may be assigned to any qualified person, provided assignee files with the Commission an affidavit accepting all terms and conditions of the permit. 7. Terms and Conditions Run with the Land. These terms and conditions shall be perpetual, and it is the intention of the Commission and the permittee to bind all future owners and possessors of the subject property to the terms and conditions. �c/ 5 -93 -137 Page 3 III. Special Conditions: 1. Deed Restriction Limiting Hours of Operation Prior to issuance of the coastal development permit, the applicant shall execute and record a deed restriction, in a form and content acceptable to the Executive Director, which shall provide that the subject restaurant /brewpub shall not be open before 5 p.m. The document shall run with the land, binding all successors and assigns, and shall be recorded free of prior liens. Maintainance of Off —Site Parking The proposed project includes the use of off —site parking for which the applicant has entered into long —term parking agreements. Prior to issuance of the coastal development permit, the applicant shall execute and record a deed restriction, in a form and content acceptable to the Executive Director, which shall provide that the applicant shall maintain, for the life of the development, 67 off —site parking spaces during the hours the development is open for business. IV. FINDINGS AND DECLARATIONS The Commission finds and declares as follows: Protect Description The applicant proposes to convert an existing 4200 square foot former market /deli (currently vacant) into a restaurant /brew pub and to add 600 square feet of outdoor dining. The existing 3100 square foot, second floor office space will remain. The public service area of the proposed restaurant will be 2800 square feet including the proposed outdoor patio dining area. The subject site is located in the Cannery Village /McFadden Square area of the Balboa Peninsula in Newport Beach. The land use designation of the subject site is Retail and Service Commercial. The proposed restaurant use is consistent with that designation. B. Public Access /Parking Section 30210 of the Coastal Act requires maximum access and recreation be provided for the general public. Section 30252 of the Coastal Act states, in part: The location and amount of new development should maintain and enhance public access to the coast by (4) providing adequate parking facilities or providing substitute means of serving the development with public transportation. The subject site is located in an area that is historically popular with the beach going public. In addition to miles of wide sandy beach, the Balboa Peninsula contains many restaurants and visitor serving retail areas as well as the two piers and the fun zone. Because of the area's popularity with the general public it often reaches peak capacity during prime visitor periods. • � �q 5 -93 -137 Page 4 The area within the existing building proposed for restaurant use is currently vacant. The former use was a market /deli. The proposed development represents an intensification of use, triggering the need to evaluate parking. When development does not provide adequate parking, patrons of that development are forced to use parking that is available to the general public. This results in patrons of private uses competing with beach goers for available public parking spaces and reduced parking supply for access and recreational uses. Lack of public parking can deter the public from using certain beach areas and other visitor amenities. The Balboa Peninsula, particularly in the McFadden Square area, includes many pre - Coastal Act buildings which were constructed without adequate parking. That adds to the general parking shortage in the area. Consequently, it is important that all new development provide adequate parking so as not to displace public beach goer and visitor parking. The Commission has adopted regional guidelines that provide guidance when determining the parking need for various uses. In past actions the Commission has consistently applied the parking ratios described in the regional guidelines for new development in the Balboa Peninsula area. For restaurant use the guidelines recommend a ratio of one parking space for every fifty square feet of public service area. For general office use, the Commission's guidelines recommend a ratio of one space for every 250 square feet of gross floor area. The City of Newport Beach zoning requirements for parking, in this case, are consistent (for office uses) or more restrictive (for restaurant use: one space for every forty square feet of public service area). • Both the City and the Commission apply a similar formula for determining parking demand in the subject area. This indicates that the ratio is appropriate in defining specific parking needs for this area. 9 The City's certified Land Use Plan requires that all new development shall provide adequate off street parking to meet the requirements of the City's zoning code. In this case the City has found that the amount of parking provided, including the use of existing spaces within a public parking lot, meets the zoning code requirements. .However, Coastal Act Section 30252 requires that new development provide adequate parking in a manner which maintains and enhances coastal access. In this case because the project .proposes to use existing spaces within a public parking lot the Commission cannot find adequate parking will be provided. Where there is no certified total Local Coastal Program, the Commission must find a proposed project consistent with the chapter three policies of the Coastal Act. The certified Land Use Plan, when there is a conflict, serves as guidance only. Based on the above guidelines ratio, the parking demand generated by the proposed project is 56 spaces. In addition, the existing office space on the second floor generates a demand of 13 spaces.. There are two spaces on -site. Additionally the applicant has a long -term lease for the use of 41 spaces in an adjacent private parking lot. The applicant proposes to provide a total of 72 parking spaces. However, of that number, 29 are acquired through a lease agreement with the City to use a parking lot that is currently available to the public. Without the public parking lot spaces, the proposed project would be deficient by 26 spaces, a significant shortfall. r � 1� 5 -93 -137 Page 5 Coastal Development Permit No. 5 -88 -252 (City of Newport Beach) allowed • construction of the public parking lot in question. In approving that development, the Executive Director determined that parking was a severe problem in the area and that the parking lot would provide 45 additional public parking spaces to be used for visitor serving uses and businesses. The current applicant sold the area now containing the public parking lot to the City in 1988. As part of the sale agreement, the current applicant retained the right to use as many as all of the spaces provided that, among other requirements, the private use be restricted to night time (5 p.m. to 6 a.m.) use. For the use of these spaces the applicant is required to pay the City a $500.00 per space annual fee. On August 9, 1909 the Commission concurred with the Executive Director's determination to approve Coastal Development Permit No. 5 -89 -512 (Doan) allowing construction of a 2375 square foot restaurant. Under that approval, the restaurant was allowed to use 18 in -lieu spaces in the same public parking lot now proposed for the same use. However in that case the public parking spaces were available for the private development only after 5 p.m. Beach and visitor parking demand generally drops after 5 p.m. The operating hours of the proposed restaurant will be 6 a.m. to 11 p.m. Sunday through Thursday and 6 a.m. to 2 a.m. Friday and Saturday. These operating hours result in parking demand that will conflict with prime beach and visitor use hours, a situation that did not occur under the project approved under 5 -89 -512 for the same applicant. In this case, the conflict results in inadequate parking for the proposed project. The applicant has an agreement with the City allowing the use of the public parking lot for the existing commercial building between the hours of 5:00 p.m. 6:00 a.m. However, under the current proposal the daytime restriction would be removed and parking for the proposed restaurant in the public parking lot would be allowed during daytime hours. The end result would be that the applicant may use all 45 spaces of the public lot from 5 p.m. to 6 a.m. and 29 or 64% of the spaces during the day. The City staff's report to the Planning Commission for action on the Amendment to an Off -Site Parkin Agreement a2 'The daytime restriction on the use of in -lieu parking spaces was to insure that the Cannery Village Municipal Parking Lot would be available to daytime businesses and visitors to Cannery Village and the beach." Minutes from the Planning Commission hearing (February 18, 1993) on the Use Permit for the proposed project quote City staff as follows: "The subject Municipal Parking Lot is not currently occupied 100 percent 12 months of the year; however, during the summer months it is relatively heavily used by recreational users and by employees at City Hall.' At the February 18, 1993 Planning Commission meeting, City staff questioned the appropriateness of displacing recreational users of the Municipal parking lot to allow for a new commercial use. The City's certified Land Use Plan states that the Balboa Peninsula experiences significant summer visitor • traffic. The certified LUP also states: , 5 -93 -137 Page 6 • There is also a difference in the peak -hour traffic for weekdays between winter and summer. A comparison of peak -hour traffic shows that it is most heavily affected on routes serving Balboa Peninsula during the summer. Usually, daily peak -hour traffic occurs between 5:00 p.m. and 6:00 p.m. At several locations during the summer, primarily in the Balboa Peninsula area, the peak hour occurs at midday, either between noon and 1:00 p.m. or between 1:00 p.m. and 2:00 p.m. The LUP further states: 0 0 Parking is a major issue in the Newport Beach Coastal Zone. Observations indicate that the current supply is generally adequate in the winter for both residents and visitors. During the summer the demand for parking increases. On peak weekends during the summer, parking is highest in the beach areas. The LUP also includes the City's policy to provide the greatest number of on- street parking spaces possible. It can be inferred that the City's intent is to provide the greatest number of public (not just on- street) parking spaces possible. Clearly the need for the provision of adequate parking with new development is an issue in the City and particularly on the Balboa Peninsula. As proposed, the project would result in the loss of 29 parking spaces currently available to the public in an area where parking demand for visitor uses and beach access is great. Without the use of the spaces available in the public lot, the subject site is deficient 26 parking spaces. Use of a public parking lot to serve private development would result in a direct loss of parking to the beach going public. Allowing the development to go forward with such a significant shortfall of parking spaces would result in loss of parking for the beach going public. The loss would result from patrons of the proposed development seeking public spaces when the other parking associated with the new development is at-capacity. However, if the project is conditioned to limit the hours of operation until after 5 p.m., the need for the public parking spaces during peak beach and visitor use periods would be eliminated. If the hours are modified, the conflict between private and public use of the public parking lot would no longer exist. When Coastal Development Permit No. 5 -89 -512 (Doan) was approved, the Executive Director determined that because the public parking lot was not necessary to serve the development before 5 p.m., adequate parking was provided. The special condition required in the subject application is consistent with that past action. To assure that the modified hours remain in effect for the life of the proposed project, the hours limitation must be recorded as a deed restriction. A second special condition is required to assure that the development will maintain off -site parking arrangements since only 2 parking spaces are provided on -site Therefore, the Commission finds, that as conditioned the project is consistent with Sections 30210 and 30252 of the Coastal Act regarding public access and recreation and the provision of adequate parking with new development. 11 Z 5-93 -137 Page 7 C. Local Coastal Program Section 30604(a) of the Coastal Act provides that the Commission shall issue a Coastal Development Permit only if the project will not prejudice the ability of the local government having jurisdiction to prepare a Local Coastal Program which conforms with the Chapter 3 policies of the Coastal Act. The Newport Beach Land Use Plan was certified on May 19, 1982. As conditioned to limit operating hours until after 5 p.m., approval of the proposed development will not prejudice the City's ability to prepare a Local Coastal Program Implementation Plan for Newport Beach that is consistent with the Chapter 3 policies of the Coastal Act as required by section 30604(a). California Environmental Quality Act Section 13096(a) of the Commission's administrative regulations requires Commission approval of a Coastal Development Permit application to be supported by a finding showing the application to be consistent with any applicable requirements of the California Environmental Quality Act (CEQA). The proposed project is in an existing urbanized area with adequate services and utilities provided and so will not cause significant adverse impacts on the environment. Additionally, as conditioned, the proposed project will provide adequate parking and so will not interfere with beach access in the area. Therefore, the Commission finds that, as conditioned, the project is consistent with the requirements of the Coastal Act to conform to CEQA. 8721E :7 iT� • -Ni1CIN1TY MAP W m rm �• e \ v s\ ' ggti�\ \ LC ts\ E• \X P.c kJR 3 NE WP OR T BA N. DISTRICTING MAP WPORT BEACH — CALIFORNIA Ag1lccLVY N:AM[la" • WI TWU •LAIC[XTIAL DMII ra Y l WOUITAL -1 wur Ow- WcML Dc►LLA RUMS W A I i(•L•AL OM1•[KYL mTh um ma Nwv q/OOITYL M-1 M41WADi mlmf pp. N0. •if coB 016mcs I • 1. F••+ Sft• TWL:• N1agpINO DLC a. mm MAP MD, 0 dtpE 'PERMIT N0.3drS5 axlub; f A .j fl ,...Y fll. ir���• ro WYN iwcwav I } i r� 1 Exl..,-:ol+ 5 5- 93- is S; , 4�r . P.f c, -vx- i 15 e O ^ 1 i law - h Sri MWA .L1 � s19 o 0 o o O O r ► , • i 3'7 .. Flaw fY� lYUIY�w i��wrii Ywl� M Iwaal Y! _awi� I✓ �aw•IP w I/arA o . Y.••I•a•a•a ® * y wa1 a_IY� Y. 9 3-137 0 1.10 Newport Beach Brewing Company, Inc. "(the Operators) ", is a California Corporation formed to construct and operate a restaurant /brew -pub to be called Newport Beach Brewing Company, which will be located at 2920 Newport Boulevard in Newport Beach, California. The restaurant will be open from 6:00 a.m. to 11:00 p.m., five days a week and 6:00 a.m. to 2:00 a.m., Friday and Saturday. There will be no live entertainment. The exterior of the restaurant /brew -pub will offer a person passing -by the "old world" ambiance of a fun and energetic eating and drinking establishment. This highly desirable Cap Cod designed building is highlighted with a random pattern brick front, shingle roof, gables, window walk, and painted wood trim. The focal point of the restaurant /brew -pub will be the custom made copper accented stainless steel beer brewing equipment that will be placed behind the bar and will rise to the ceiling of the building. These brewing tanks and storage vats will be cleaned and polished daily to keep their luster and appeal. The Operators of the restaurant /brew -pub are working carefully with their experienced architect and design team to select a theme that will create a warm, yet vibrant environment for patrons to enjoy. An emphasis for the interior of the restaurant will be comfortable stained hard -rood and brick that offer a rustic old world charm and ambiance. The bar is expected to be stained and shined dark hardwood and cooper with a brass foot rail that will give the immediate area an "upper- class" feel. There will be bountiful seating at the bar and on bar stools directly across from the bar. There will be seating at tables throughout the remainder of the restaurant, as well as on the patio. The walls will be brick and decorated with memorabilia from the brewing industry with particular emphasis on California pre - prohibition breweries, early Newport Beach and brew -pubs and micro - brewers currently operating in California and the Pacific Northwest. The restaurant's menu will feature classic, as well as, up- to -date cuisine that will appeal to the modern palate. Appetizers will include buffalo wings, beer battered fried onion rings, and "Armadillo eggs" (stuffed jalapeno peppers). A visible custom brick wood fired pizza oven will be the focal point as a number of individual gourmet wood fired pizzas will be served. Newport Beach's "finest" fresh ground burger will also head the entrees with other choices including a "naked" chicken breast sandwich, and a selected number of pasta dishes. A wide variety of salads will be offered either before a meal or as a meal themselves and "World �jCGu �i-f• � 5= 93 -/37 l Championship" homemade chili will be served in a similar manner. �Y There will also be an assortment of fresh baked desserts available to patrons of the establishment. The restaurant /brew -pub dntends to offer a full service wine and beer bar with the emphasis on premium beer that will be brewed on the premises. There will usually be four to six beers available that were brewed on site. The range of beers will include ales, pilsners, lagers and stouts. The brewery will produce approximately- 16 varieties of beer each year, including such special seasonal flavors as Octoberfest Pilsnor and Christmas Ale. The beer should present itself as quite a value to the customer, since a 16 -ounce glass of premium, rich beer will cost justly slightly more than a 12 -ounce bottle of mass produced domestic beer. The beer brewed on the premises will easily overmatch both domestic and imported beers in quality and taste. A claim such as this can be made since the ingredients will be of the highest quality and procured under the direct supervision of the brew - master and the beer will be served as soon as it has completed fermenting, giving the consumer a fresh taste without any preservatives. The bar will also offer a full range of soft drinks, wines, as well as bottled domestic beer with a limited selection of bottled imported alcoholic and non - alcoholic beers. The Operators intend to construct the restaurant /brew -pub at 2920 Newport Boulevard which is the corner of Newport Boulevard and 30th Street between Newport Boulevard and villa way in Newport Beach, California (the "Premises "). The Premises is located within the "Cannery Village" area of Newport Beach which is intended to serve as an active pedestrian- oriented specialty retail /restaurant area with a wide range of visitor - serving, neighborhood commercial, and marine - related uses permitted. r -79 a A`12w Woo P W W F R: 9 z> ao - zn w0N W CY, 6 En ca ra w4o ? P4 Cl) wzz 8 Uw s LN 4 10 Cn CA CA 04 11 Ri N M rn 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 RECORDING REQUESTERY AND RETURN TO: California Coastal Commission 45 Fremont St., Suite 2000 San Francisco C4 94105 -2219 Attn: Legal Division RECORDING REQUESTED BIS NDRTN AMERICAN TITLE DEED RESTRICTION . 0 DOG # 94-00387106 19- JAN -1994 08:00 RecOrder! 1!! UrHicial Records V, uraiisi Cowity, California LL- A. Brach, fxuey Re;orr,�r "rage 1 of 2f) . ides, g aatii% Tax: 'v C. v I. WHEREAS, Tjlgpds W Phan and rinrn- 1 n ty=ro- as Tt7lgi•aea of The n 2/ Trxc+�t 97.1974 , hereinafter referred to as the "Owner($)," is /are �A([ the record owner(s) of the following real property: ' hereinafter referred to as the "Property;" and II. WHEREAS, the California Coastal Commission, hereinafter referred to as the "Commission," is acting on behalf of the People of the State of California; and III. WHEREAS, the subject property is located within the coastal zone as defined in 530103 of Division 20 of the California Public Resources Code, hereinafter referred to as the "California Coastal Act of 1976," (the Act); and IV. WHEREAS, pursuant to the Act, the Owner applied to the Commission for a coastal development permit on the Property described above; and V. WWEREAS, coastal development uermit number' 5 -93 -137, hereinafter referred to as.the "Permit," Was granted on July 15' 1993 , by the Commission in accordance witl the provision of the Staff Recnmmendation and Notice of Intent u Pe mt and Findings attached hereto as E.t� Ri P J 4erein incorporated by tl IFO 8 9 10 11 12 13 14 151 161 17 is 19 20 21 22 23 24 25 26 27 • counr PAPEn su •c 1:3 .Ev +u 510 110 rnev •.fir OM reference; and VI. WHEREAS, the Permit was subject to the terms and conditions including, but not Limited to, the following condition(s): 1. Deed Restriction Limiting Daytime Use Prior to issuance of the coastal development permit, the applicant shall execute and record a deed restriction, in a form and content acceptable to the Executive Director, which shall provide that no more than 1,500 square feet of service area of the subject restaurant /brewpub shall be open before 5 p.m. The document shall run with the land, binding all successors and assigns, and shall be recorded free of prior liens and encumbrances which the Executive Director determines to affect said interest. 2. Maintenance of Off -Site Parkin The proposed'project includes the use of off -site parking for which the applicant has entered into long -term parking agreements. Prior to issuance of, the coastal development permit, the applicant shall execute and record a deed restriction, in a form and content acceptable to the Executive Director, which) shall provide that the applicant shall maintain, for the life of the development, a total of 41 off -site parking spaces between 6:00 a.m. and 5:00 p.m. daily, and a total of 67 off -site parking spaces between 5:00 p.m. and 2:00 a.m. daily. The document shall run with the land, binding all successor:: and assigns, and shall be recorded free of prior liens and encumbrances which the Executive Director determines to affect said interest. VII. WHEREAS, the Commission found that but for the imposi.tion of the above condition(s) the proposed development could not be found*consisfent i with the provisions of the California Coastal Act of 1976 and that a permit could therefore not have been granted; and VIII. WHEREAS, Owner has elected to comply with the conditions) imposed by the Permit and execute this Deed Restriction so as to enable Owner to undertake the development authorized by the Permit. —Z' 1 E i 8 9 10 11 12 13 14 15 16. 17 18 19 20 21 22 23 24 25 26 27 COURT PAPER sr a S vD. 113 4.1v. .-72i eu L NOW, TREREFORE, in consideration of the granting of the Permit to the Owner by the Commission, the Owner hereby irrevocably covenants with the i Commission that there be and hereby is created the following restrictions on the use and enjoyment of said Property, to be attached to and become a part of the deed to the property. I. COVENANT, CONDITION AND RESTRICTION. The undersigned Owner, for himself /herself and for his /her heirs, assigns, and successors in interest, covenants and agrees that: Applicant shall provide•that no more than 1,500 square feet of service area of the subject restaurant /brewpub shall be open before 5:00 p.m. Applicant shall maintain for the life of the development, a total of 41' off -site parking spaces between 6:00 a.m. and 5:00 p.m. and a total of 67 off -site parking spaces between 5:00 p.m. and 2:00 a.m. daily as shown on exhibit C attached hereto and incorporated herein by reference. 2. DURATION. Said Deed Restriction shall remain in full force and effect during the period that said permit, or any modification or amendment thereof remains effective, and during the period that the development authorized by the Permit or any modification of said development, remains in existence in or upon any part of, and thereby confers benefit upon, the Property described herein, and shall bind Owner and all his /her assigns or successors in interest.. 3. TARES AND ASSESSMENTS. It is intended that this Deed Restriction is irrevocable and shall constitute an enforceable restriction within the meaning of a) Article XIII, 48, of the California Constituti.•+ -3- 1 and b) 4402.1 of the California Revenue and Taxation Code or successor 2 statute. Furthermore, this Deed Restriction shall be deemed to constitute . 3 a servitude upon and burden to the Property within the meaning of 43712(d) 4 of the California Revenue and Taxation Code, or successor statute, which 5 survives a sale of tax- deeded property. 6 4. RIGHT OF ENTRY. The Commission or its agent may 7 enter onto the Property at times reasonably acceptable to the Owner to 8 ascertain whether the use restrictions set forth above are being observed. 9 5. REMEDIES. Any act, conveyance, contract, or authorization 10 by the Owner whether written or oral which uses or would cause to be used 11 or would permit use of the Property contrary to the terms of this Deed 12 Restriction will be deemed a violation and a breach hereof. The Commission 13 and the Owner may pursue any and all available legal and /or equitable remedies 14 to enforce the terms and conditions of this Deed Restriction. In the event 15 of a breach, any forbearance on the part of either party to enforce the 16 terms and provisions hereof shall not be deemed a waiver of enforcement 17 rights regarding any subsequent breach. i8 6. SEVERABILITY. If any provision of these restrictions is 19 held to be invalid, or for any reason becomes unenforceable, no other 20 provision shall be thereby affected or impaired. 21 22 Dated: A� G G 19 23 Jr " 24 SIG �� ri NED: � 2s�'•��s -�i `�`� 25 Tff 34A) 7k -STtr f?n7-l/!eA fA W 7"_ PRINT OR TYPE NAME OF ABOVE PRINT OR TYPE NAME OF ABOVE 26 $7 * * NOTARY ACKNOWLEDGMENT ON THE NEXT PAGE COURTPAPCR W} O GLI NM STD. 119 ,NIV. 8.791 -4- "P /S 3 2 3 4 5 6 7 8 9 10 11 12 13 0 ! STATE OF CALIFORNIA COUNTY OF On Public personally appeared before me, A Notary personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /hir /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature BIGHTTHUMBNHNF 10FTMA State Of L4c c SW x f(• County of II.� On % & - `/ 3 before me, qr� V 1 1 / 64' (�L L 11 IDATF� (NAM TITLE OF OFFICER. I.C. I.C.'ANE DOE. NOTARY PUBUO'T personally appeared 111t-'lirti vv r 7/Lc.C1ZE e Y m.bersonally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are sub- scribed to the within instrument and acknowledged oFFIC1ALSr:AL to me that he /she /they executed the same in MARY R. MEZEUt his /her /their authorized capacity(ies), and that by [Q: NdfdtyPUbNc- COIIfomW ORANGE COUNTY his /her /their signature(s) on the instrument the AyCorrurV�anExpBes person(s), or the entity upon behalf of which the Apd129. 1990 person(s) acted, executed the instrument Witness my hand and official seal. "�i-r"'_. . t,,'17 - .. CAPACITY CLAIMED BY SIGNER($) ❑ INDIVIDUAL(S) ❑ CORPORATE OFFICER(S) ❑ PARTNER(S) MTLEis) ❑ ATTORNEY IN FACT • TRUSTEE(S) • GUARDIAN /CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: (NAME OF PERSOM%OR ENTITYfRESH NTION NOTARY., The intormation requested below is OPTIONAL Mould, howeve`r,.4�ev —ent fraudulent attachment of this cer ikate to any unauthorized document. THIS CERTIFICATE 7itleor7ypeotpooiment — ' � '- MUST BE ATTACHED Number of Pages T Date of Document TO THE DOCUMENT DESCRIBED AT RIGHT: Signer(s) Other Than Named Above WRWR CAPAGTV /RE HIRWOMPI IGFAPRINT —Rev. 7Iffi olere xvuaTTS roRMS.IRC. 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16, 17 18 19 20 21 22 23 24 25 26 27 This is to certify that the deed restriction set forth above is hereby acknowledged by the undersigned officer on behalf of the California Coastal Commission pursuant to authority conferred by the California Coastal Commission when it granted Coastal Development Permit No. 5 -93 -137 ion July 15, 1993 and the California Coastal Commission consents to recordation therof by its duly authorized officer. Dated: 13 ' Jo rs, Staff Counsel California Coastal Commission STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO On % / 3 before me, Deborah L. Bove A Notary Public personally appeared John Bowers personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature J-442�� I COORTPAPER N '1 STATE Of CAL...*",A INII $TO Its 1REV E.RI —E 1 O OEt DEBORAH L BOYE NOTARY PUBI.ICLAUFORNIA r CRY &COUMYOF SAN FRANCISCO CmnmessW Expires October 4, 1995 V / �5 STATE 6F CALIFORNIA —THE RESOURCES AGENCY EXHIBIT nAn PETE WILSON, O9 me CALIFORNIA COASTAL COMMISSION Page 1 of 3 SOUTH COAST AREA 245 W. BROADWAY, STE. 980 Date: A 1 st 10 1 �' P.O. BOX 1450 Permit Application No. 5 -93 -137 LONG BEACH. CA 90BD2.416 (310) 5945071 NOTICE OF INTENT TO ISSUE PERMIT On July 15 1993 the California Coastal Commission granted to THE DOAN TRUST Permit 5 -93 -137 subject to the attached conditions, for development consisting of: Conversion of an existing 4200 square foot former market /deli (currently vacant) to a restaurant /brew pub and the addition of 600 square feet of outdoor dining. Existing 3100 square foot, second floor office will remain. more specifically described in the application file in the Commission offices. The development is within the coastal zone in Orange County at--2920 Newport Blvd., Newport Beach The actual development permit is being held in the Commission office until fulfillment of the Special Conditions imposed by the Commission. Once these conditions have been fulfilled, the permit will be issued. For your information, all the imposed conditions are attached. Issued on behalf of the California Coastal Commission on July 15. 1993___ _. PETER DOUGLAS Executive Director By: L C 4 Vatt.o.,P�� Title: taff Analyst ACKNOWLEDGMENT: The undersigned permittee acknowledges receipt of this notice of the California Coastal Commission determination on Permit No. 5 -93 -137 and fully understands its contents, including all conditions imposed. /;7— 2.i (I.:[..721 i1.v Date Pe ittee Please sign and return one copy of this form to the Commission office at the above address. & 01 0 NOTICE OF INTENT TQ ISSUE PERMIT r Page 2 of 3 Permit Application No. 5 -93 -137 STANDARD CONDITIONS: 1. Notice of Receipt and Acknowledgment. The permit is not valid and development shall not commence until a copy of the permit, signed by the permittee or authorized agent, acknowledging receipt of the permit and acceptance of the terms and conditions, is returned to the Commission office. 2. Expiration. If development has not commenced, the permit will expire two years from the date on which the Commission voted on the application. Development shall be pursued in a diligent manner and completed in a reasonable period of time. Application for extension of the permit must be made Prior to the expiration date. 3. Compliance. All development must occur in strict compliance with the proposal as set forth in the application for permit, subject to any special conditions set forth below. Any deviation from the approved plans must be reviewed and approved by the staff and may require Commission approval'. 4. Interpretation. Any questions of intent or interpretation of any condition w 11 be resolved by the Executive Director or the Commission. 5. Inspections. The`Commission staff shall be allowed to inspect the site and the project during its development, subject to'24 -hour advance notice. 6. Assignment. The permit may be assigned to any qualified person, provided assignee files with the Commission an affidavit accepting all terms and .conditions of the permit. 7. Terms and Conditions Run with the Land. These terms and conditions shall be perpetual, and it is the intention of the Commission and the permittee to bind all future owners and possessors of the subject property to the terms and conditions. SPECIAL CONDITIONS: 17. Deed Restriction Limiting Daytime Use Prior to issuance of the coastal development permit, the applicant shall execute and record a deed restriction, in a form and content acceptable to the Executive Director, which shall provide that no more than 1,500 square feet of service area of the subject restaurant /brewpub shall be open before 5 p.m. The document shall run with the land, binding all successors and assigns, and shall be recorded free of prior liens.' s Page 3 5 -93 -137 2.. Maintainance of Off —Site Parking The proposed project includes the use of off —site parking for which the applicant has entered into long —term parking agreements. Prior to issuance of the coastal development permit, the applicant shall execute and record a deed restrictiob, in a form and content acceptable to the Executive Director, which shall provide that. the applicant shall maintain, for the life of the development, a total of 41 off —site parking spaces between 6:00 a.m. and 5:00 p.m. daily, and a total of 67 off —site parking spaces between 5:00 p.m, and 2:00 a.m. daily. 3. Rgcission of Amendment to Parking Agreement Prior to issuance of the coastal development permit, the applicant shall submit evidence'that the Amendment to Parking Agreement approved by the City of Newport Beach on February 18, 1993, has been rescinded by the City Council. Additionally, prior to issuance of the coastal development permit, the applicant shall submit, for the review and approval of the Executive Director, a letter from the City of Newport Beach indicating that the City agrees that the City's Code Enforcement will enforce the public service area restrictions described in Special Condition 1. ;submittal of Final. Plans Prior to issuance of the coastal development permit, the applicant shall submit, for the review and approval of the Executive Director, final floor plans illustrating the area proposed far the day use restriction imposed in special conditionl, above. AFTER YOU HAVE SIGNED AND RETURNED THE DUPLICATE COPY YOU WILL BE RECEIVING THE LEGAL FORMS TO COMPLETE (WITH INSTRUCTIONS) FROM THE SAN FRANCISCO OFFICE. WHEN YOU RECEIVE THE DOCUMENTS IF YOU HAVE ANY QUESTLONS, PLEASE CALL THE LEGAL DEPARTMENT AT (415) 904 -5200. MV:tn 9280E mm EXHIBIT "B" (LEGAL DESCRIPTION) PARCEL A: THE WESTERLY 12.5 FEET OF LOT 17, ALL OF LOTS 18, 19, 20 AND 21, AND THE EASTERLY 9.50 FEET OF LOT 22, BLOCK •230 OF LANCASTER'S ADDITION TO NEWPORT BEACH, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 5, PAGE 14 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE $COUNTY, .CALIFORNIA. PARCEL B: PARCEL 1, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, ACCORDING TO THE PARCEL MAP FILED IN BOOK 92, PAGE 40 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. �d 1 JAN 12 '94 14:18 y PROPERTIES .! PAW-EL MAp 4. Soytbwest Corner of • f .. ..� 30th,gtreet and Villa way A Newport Beach, California Mtober, 1987 Richard A. Fuller. M.A.I. t9 W.dY i 9 v 18 0 n �D i b� P.M. 54 -r is 12 _.._ V j / tiff 7 0 26 o 16 7 01 33 J •� tr 4* i' ASTER'S' ADD. '44f S- 14 £L M.4 P' . • P. M. 92 -'4p / MAIO G •i On _ 7 /rrni -rr n.. u 1 � NFL � ��_ � ASSE'.• BppK 4 COUA i Exhibi. P. 2/2 f .. ..� W.dY b� P.M. 54 -r W' /4 '3 tiff • i T. I' '. is 4 q � L,.13 Ar' / $ �iY '. P. APs' 1 P. b M. 9P - 40 w e_. ASTER'S' ADD. '44f S- 14 £L M.4 P' . • P. M. 92 -'4p / MAIO G •i On _ 7 /rrni -rr n.. u 1 � NFL � ��_ � ASSE'.• BppK 4 COUA i Exhibit No. 4 l9l BLANK ,�z G C'�<tFppN�r CITY OF NEWPORT BEACH COMMUNITY AND ECONOMIC DEVELOPMENT PLANNING DEPARTMENT Moo NEWPORT BOULEVARD NEWPORT BEACH, CA 92658 (949) 644-3200; FAX (949) 644-3250 Hearing Date: Agenda Item No.: Staff Person: September 13, 1999 17 Patrick J. Alford 644 -3235 REPORT TO THE MAYOR AND CITY COUNCIL SUBJECT: Newport Beach Brewing Company Appeal FILE COP Y 2920 Newport Boulevard SUMMARY: An appeal by the applicant of the Planning Commission's denial of an amendment to Use Permit 3485 to allow a change in Alcoholic Beverage Control license type to allow full alcoholic beverage service. ACTION: Affirm or reverse the Planning Commission's denial of: • Use Permit No. 3485 (Amended) Background On August 5, 1999, the Planning Commission voted (3 ayes, I no, 3 absent) to deny the proposed amendment to Use Permit 3485. The appeal of the Planning Commission's decision was filed on August 19, 1999. Analvsis The project denied by the Planning Commission would have allowed the restaurant/brewpub to go from beer and wine service only to full alcoholic_beverage service. The Planning Commission .. 'based its denial on the high crime rate and high concentration of licenses in the Cannery Village area. The Planning Commission determined that due to these factors, public convenience or necessity would not be served by the project. Furthermore, the Planning Commission concluded that approval of the project under these circumstances would be detrimental to the health, safety, peace, morals, comfort, and general welfare of persons residing or working in the area. The Planning Commission's review of the project followed the provisions of the Alcoholic Beverage Outlet (ABO) Ordinance. The ABO requires the Planning Commission to consider whether the use serves public convenience or necessity, the crime rate, the number of alcohol licenses per capita, the numbers of alcohol- related calls for service, crimes or arrests, and adjacent land uses. The Planning Commission noted that the crime statistics and ratio of alcoholic beverage licenses to population constitute an "undue concentration" of licenses under State law. Under these circumstances, the ABC is required to deny the application for the license unless the City determines that public convenience or necessity would be served by its issuance. 1�3 The Planning Commission also considered information provided by the Police Department. The Police Department cited the disproportionate impact alcohol related offenses continues to have on their workload and on the quality of life in the community. The Police Department also stated that while they had no serious concerns with the current operation, they believed that the project must be considered in light of the larger issue of the intensification of alcohol and related uses on the Balboa Peninsula, especially in the Cannery Village area. At the Planning Commission hearing, the applicant stated that they operate a good establishment and that full alcoholic beverage service is needed in order to stay competitive and offer improved services to their customers. The applicant cited statistics attributing less than one percent of the alcohol- related arrests in the area to the establishment. The applicant also stated that the over concentration issue was moot, since they were an existing establishment and were only modifying an existing license. The applicant further stated that the situation in the area will improve with the closing of the Cannery Restaurant and the Snug Harbor. Should the City Council choose to reverse the Planning Commission's denial of the project, findings and conditions for approval are contained in Exhibit `B" of the Planning Commission staff report. Submitted by: Prepared by: SHARON Z. WOOD PATRICK J. ALFORD Ascict�ttt City Manager Senior Planner Attachments: 1. A eal Application. 2. August 5, 1999 Planning Commission staff report 3. August 5, 1999 Planning Commission meeting minutes. Newport Beach Brewing Co. Appeal September 13, 1999 Page 2 CITY OF NEWPORT BEACH TO APPEAL DECISION OF THE PLANN Application No. _ VSL j'cr i-, -t /V o. 3y9S (_11 Name of Appellant IV . I t n or person filing: (N<< �L IJohr �L , r j Phone: Address:'-/ I S To t✓n54 UjLee Ls,. TrZ 1 q 17 rJn`ti na4A Date of Planning Commission decision: f-� uonJiv s't 19 Regarding application of: / V G I VAOP fJc" 8/`c 1,;#, a (Description of application filed with Planning Commission) a CO"�Wjjy ED O'k t) 12 �cCIIT ;)F gP0R�.Y6 a,d i+M y for Reasons for Appeal : Jf�+rr'f vo.rSC.^ FOR OFFICE USE ONLY v v Date Appeal filed and Administrative Fee received: Hearing Date. An appeal shall be scheduled for a hearing efore the City Council within thirty (30) days of the filing of the appeal unless both applicant and appellant or reviewing body consent to a later date (NBMC Sec. 20.95.050) cc: Appellant Planning (Furnish one set of mailing labels for mailing) File APPEALS: Municipal Code Sec. 20.95.040B Appeal Fee: $278 pursuant to Resolution No. 98 -52 adopted on 7 -27 -98 (Deposit funds with Cashier in Account #2700 -5000) /�55 CITY OF NEWPORT BEACH COMMUNITY AND ECONOMIC DEVELOPMENT m PLANNING DEPARTMENT 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92658 (949) 644-5200; FAX (949) 644-3250 SUBJECT: SUMMARY: ACTION: LEGAL DESCRIPTION: ZONING DISTRICT: LAND USE DESIGNATION: OWNER: Hearing Date: Agenda Item No.: Staff Person: Appeal Period: REPORT TO THE PLANNING COMMISSION Newport Beach Brewing Company 2920 Newport Boulevard August 5, 1999 1 Patrick J. Alford 644 -3235 14 Days An amendment to an existing use permit to allow a change in Alcoholic Beverage Control license type to allow full alcoholic beverage service. Hold hearing; approve, modify, or deny: Use Permit No. 3485 (Amended) Parcel 1 of Parcel Map 92-40 (restauranthrewpuh site) and portioms of Lots 17 and 22 of Lancaster's Addition (off -site parking lot). Cannery Village/McFadden Square Specific Plan (SP -6) - Specialty Retail (SR) District. Retail and Service Commercial Allan Fainbarg and Arnold D. Feuerstein, Anaheim �y� 9 Pro �w o � V d` VICINITY MAP y �M1 I320: �1 509 t FT Ict Site A wro \ '• QI 3i •I i g 4 k 2912 u ` aaoe n I wro \ '• QI 3i •I i g 4 k 2912 u ` aaoe Use Permit 3485 (Amended) J Subject Property and Surrounding Land Uses Current land use: Commercial (eating and drinking establishment/office) To the north: 301h Street with commercial (retail and office) /residential beyond. To the south: Public alley with commercial (eating and drinking establishment) beyond. To the east: Surface parking. To the west: Newport Boulevard with commercial (retail) beyond. d Use Permit 3495A (Newport Beach Brewing Co.) August 5. 1999 Page 2 , <J 7 Points and Authority Environmental Review (California Environmental Ouality Act) • It has been determined that the project is categorically exempt under Class I (existing facilities). Conformance with the General Plan ■ The Land Use Element of the General Plan designates the site for 'Retail and Service Commercial" uses. Restaurants are permitted uses within this designation. Conformance with the Zoning Code Eating and drinking establishments are permitted on the approval of a use permit in the SP -6 /SR District. ■ A use permit is required for any existing alcoholic beverage outlet seeking to change its type of retail liquor license with the Department of Alcoholic Beverage Control under the provisions of Chapter 20.89 of the Municipal Code. Use permit procedures and requirements are set forth in Chapter 20.91 of the Municipal Code. Background On February 18, 1993, the Planning Commission approved (6 ayes, I absent) Use Permit No. 3485 for a combination restaurant and brewpub. On March 8, 1993, the City Council approved the use permit in conjunction with an amendment to an existing off -site parking agreement that would have allowed the project to use 29 parking spaces in the Cannery Village Municipal Parking Lot. On September 27, 1993, the City Council amended the use permit to reflect additional restrictions on the amount of net public area and the number of off -site parking spaces placed on the project by the California Coastal Commissions. Site Overview The project site is an 8,320 square foot parcel located at the southeast corner of the intersection of Newport Boulevard and 30t Street. The site is developed with a two -story, 7,876 square foot structure. On the first floor, the restaurant occupies approximately 3,244 square feet and the brewery occupies approximately 1,532 square feet. The 3,100 square feet of the second floor is used as office space. t The Coastal Commission was concerned that the use of 29 parking spaces in the Cannery Village Municipal Parking Lot would conflict with public use of these spaces during the day. Use Permit 3485A (Newport Beach Brewing Co.) August 5, 1999 Page 3 The project site contains approximately 2,276 square feet of net public area. However, it is limited by conditions to 1,500 square feet of net public area prior to 5:00 p.m., Monday through Friday. The project site contains 2 on -site parking spaces and there is an off -site parking agreement for an additional 41 spaces in the surface panting lot on the abutting property (410 30`h Street). In addition, the project has access to 29 in -lieu parking spaces in the Cannery Village Municipal Parking Lot (426 30th Street) after 5:00 p.m. Protect Overview The applicant is requesting an amendment to the existing use permit to allow the restaurant /brewpub to go from beer and wine service only to full alcoholic beverage service (i.e., the sale of whiskey, rum, brandy, gin, and other distilled spirits). No modifications to the site plan, floor plan, elevations, or conditions of approval are proposed. Analvsis Under the provisions of the Alcoholic Beverage Outlet (ABO) Ordinance, an amendment to-an existing use permit is required when an alcoholic beverage outlet changes its type of retail liquor license with the Department of Alcoholic Beverage Control (ABC). In this case, the change is from a Type 23 (Small Beer Manufacturer) to a Type 75 (On -Sale General Brew -Pub). The ABO Ordinance requires that the Planning Commission consider the following factors when approving a use permit: I. Whether the use serves public convenience or necessity. 2. The crime rate in the reporting district and adjacent reporting districts as compared to other areas in the City. 3. The number of alcohol licenses per capita in the reporting district and in adjacent reporting districts as compared to the county-wide average. 4. The numbers of alcohol - related calls for service, crimes or arrests in the reporting district and in adjacent reporting districts. 5. The proximity of the alcoholic beverage outlet to residential districts, day care centers, park and recreation facilities, places of religious assembly, and schools. The project site is located within Police Reporting District No. 15 and within Census Tract NO. 635.00. The charts below present 1997 data (most current available) related to factors 2, 3 and 4. Public Convenience or Necessity. Current City Council policy provides criteria for situations when the public convenience or necessity will not be served. However, this policy is only applicable to bars, cocktail lounges, cabarets, and nightclubs. Since the proposed project will not Use Permit 3495A (Newport Beach Brewing Co.) �63 August 5, 1 n Page e 4 a 7 contain any of these uses, there is no policy requiring a finding that the proposed project does not serve the public convenience or necessity. Currently, there are 24 on -sale establishments providing full alcoholic beverage service in the area (see Table 1 below). However, the project is the only brewpub in the City. Therefore, the convenience of the public can arguably be served by the sale of distilled spirits in a restaurant/brewpub setting. It can also be argued that are an abundance of establishments providing full alcoholic beverage service in this area and that the public convenience or necessity would not be served by the addition of another. Both views must be balanced by the other four factors to be evaluated by the Planning Commission for this use permit. Based upon all the information assessed in these factors, the Planning Commission may determine whether this approval is necessary to serve the public convenience or necessity. Table i Full Alcoholic Beverage Service Licenses Subject Adjacent Adjacent ABC License Type Reporting Reporting Reporting District No. 15 District No. 13 District No. 16 Type 21 4 1 1 Type47 21 6 2 Type 48 3 0 0 TOTAL: 28 7 3 Type 21 = Off -Sale General (grocery stores, convenience markets, etc.) Type 47 = On -Sale General for Bona Fide Public Eating Place (restaurants). Type 48 = On -Sale General Public Premises (bars and cocktail lounges). Crime Rate. The crime rate in Reporting District No. 15 currently exceeds the citywide crime rate by over 258 % (see Table 2 below). Reporting Districts No. 13 and No. 16 are adjacent and also have crime rates that.are above the citywide crime rate. The Police Department notes that during the first six months of 1999, reported offenses citywide for driving under the influence and drunkenness increased 19 %, when compared to the same period in 1998. Actual arrests for all offenses citywide only increased 8.8 %. Table 2 Crime Rates and Arrests Subject Adjacent Adjacent City -Wide Reporting Reporting Reporting District No. 15 District No. 13 District No. 16 Crimes Part 1: 3,370 354 121 177 Pan 2: 3,300 749 132 253 Crime Rate: 4,780.14 12,343.10 5.620.07 6,941.18 Arrests Total Arrests: 3,562 951 131 270 Alcohol- Related: 1 44.19% 1 64.67% 40.46% 1 52.96% "Part I Crimes" are homicide. forcible rape, robbery. aggravated assault, burglary, larceny- theft, auto theft, and arson. All other crimes are "Part 2 crimes." The "Crime Rate" the number of crimes per 100,000 people. "Alcohol- related arrest" means the offender had been drinking prior to the incident for which they were arrested. Use Permit 3485A (Newport Beach Brewing Co.) August 5, 1999 Page 5 tb� ��ao Under the provisions of Section 23958.4 of the California Business and Professions Code, one of the conditions that constitutes an "undue concentration" of licenses is crime statistics that exceed the citywide average by 20 %. The ABC is required to deny the application for the license unless the Police Department (as authorized by City Council Policy K -7) determines that public convenience or necessity would be served by its issuance. The Police Department has reviewed the proposed project and has stated that they have no serious concerns with the current operation. However, the Police Department also has stated that the project must be considered in light of the larger issue of the intensification of alcohol and related uses on the Balboa Peninsula, especially in the Cannery Village area, which has experienced resident complaints regarding alcoholic beverage outlets. The Police Department believes that this demonstrates the disproportionate impact alcohol related offenses continues to have on their workload and on the quality of life in the community. Therefore, the Police Department cannot endorse the proposed intensification of the ABC license and land use. Over Concentration. Census Tract 635.00 currently has a ratio of alcoholic beverage licenses to population that is above the average ratio of Orange County (see Table 3 below). Census Tract 628.00 is adjacent and also has a ratio of alcoholic beverage licenses to population that is above the average ratio of Orange County. The ratio of alcoholic beverage licenses to population also constitutes an "undue concentration" of licenses under the provisions of Section 23958.4 of the California Business and Professions Code. Therefore, the ABC is required deny the application for the license unless it is determined that public convenience or necessity would be served by its issuance. The Police Department is especially concerned about the concentration of ABC licenses on the Balboa Peninsula. Therefore, the Police Department is recommending that the proposed project be reviewed against the greater issue of intensifying alcohol usage on the peninsula. Table 3 Ratio of ABC Licenses to Population Projected Census Tract Census Tract Based on No. 635.00 No. 628.00 Orange County average 1990 Population: 6.182 4.959 ABC Licenses: On -sale licenses 46 19 7 (1 per 134 persons) (I per 261 persons) (1 per 893 persons) Off -sale licenses 9 6 4 (I per 686 persons) (I per 826 persons) (( per 1,533 persons) Alcohol - Related Arrests. Alcohol related arrests means the offender had been drinking prior to the incident for which they were arrested. There were 951 arrests in Reporting District No. 15 during 1997 as compared to the 3,562 arrests citywide. Of the arrests made in Reporting District No. 15, 65% were alcohol- related, while 44% of the arrests citywide were alcohol- related. Reporting Use Permit 3485A (Newport Beach Brewing Co.) August 5. 1999 Page 6 ZO!7 District No. 13 and No. 16 are adjacent. Reporting District No. 13 had alcohol- related arrests percentages that were slightly below the citywide percentages (41 %) and Reporting District No 16 had alcohol- related arrests percentages that were above the citywide percentages (53 %). At public hearings for other projects in the Cannery Village area, residents and business operators have reported a pattern of public nuisance behavior. Generally, this behavior is conducted by patrons of area restaurants and bars as they arrive, depart, or travel between establishments. The ABO Ordinance requires that the applicant take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, alleys and other areas during business hours. However, in this area, with a high number of alcoholic beverage outlets, it is difficult to determine which establishment is responsible for public nuisance behavior in public areas. Adiacent Uses. There are no day care centers, park and recreation facilities, places of religious assembly, or schools in the immediate vicinity of the project site. However, the project is located in a mixed commercial - residential zoning district and there are residential dwelling units on 301h Street, directly across from the project site. Therefore, there is always the potential for impacts to the residents associated with patrons arriving and departing from the project site. However, the Police Department has stated that they are not aware of disturbances originating from the project site. Recommendation Section 20.91.035 of the Municipal Code provides that in order to grant any use permit, the Planning Commission shall find that the establishment, maintenance or operation of the use or building applied for will not, under the circumstances of the particular case, be detrimental to the health, safety, peace, morals, comfort, and general welfare of persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City. The facts in this case support a finding that the proposed use would be, detrimental to the area because the public convenience or necessity would not be served by the proposed change in Alcoholic Beverage Control license type to allow full alcoholic beverage service. The number of alcohol- related arrests and the over - concentration of alcoholic beverage outlets in the area would also support this finding. The findings for denial are provided as Exhibit "A." The Planning Commission could find that the issues normally associated with eating and drinking establishments have been addressed by the current conditions of approval, and the introduction of full alcoholic beverage service is not expected to change this situation nor be detrimental to the surrounding land uses. If the Planning Commission takes this action, the Police Department is recommending a new condition advising the applicant that a special event permit is required for events or promotional activities outside the normal operational characteristics of establishment. Also, staff has updated the original conditions of approval to remove conditions that are no longer applicable (i.e., those relating to the building's construction) and to add standard City requirements. The findings for approval and recommended conditions are provided as Exhibit "B." 1 Use Pemi[ 3485A (Newport Beach Brewing Co.) August $. 1999 Page e 7 7 �q !_� Submitted by: PATRICIA L. TEMPLE Planning Director rp��GfGI � /G�n� Attachments: Prepared by: PATRICK J. ALFORD Senior Planner I. Exhibit "A" (findings for denial) 2. Exhibit "B" (findings and conditions for approval) 3. Applicant's project description and justification. 4. Census Tracts Map. 5. Reporting Districts Map. 6. Site plan and floor plan. Use Permit 3485A (Newport Beach Brewing Co.) August 5. Page ge 8 8 o FINDINGS: EXHIBIT r All FINDINGS AND CONDITIONS FOR DENIAL FOR USE PERMIT NO. 3455 (AMENDED) The proposed project is located in Police Reporting District No. 15, which has a crime rate that exceeds the citywide crime rate by over 258 %. This constitutes an "undue concentration" of licenses under the provisions of Section 23958.4 of the California Business and Professions Code. 2. The proposed project is located in Census Tract 635.00, which has a ratio of alcoholic beverage licenses to population that is above the average ratio of Orange County. This constitutes an "undue concentration" of licenses under the provisions of Section 23958.4 of the California Business and Professions Code. 3. The public convenience or necessity would not be served by the granting of the amendment to Use Permit No. 3485 to allow a change in Alcoholic Beverage Control license type to full alcoholic beverage service because of the undue concentration of licenses in the area. 4. Due to the undue concentration of alcoholic beverage outlets and their impact on the Cannery Village area, and because the public convenience or necessity would not be served, the proposed project would be detrimental to the health, safety, peace, morals, comfort, and general welfare of persons residing or working in the neighborhood of such proposed use and would be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City. ere � y ExMIT `B" FINDINGS AND CONDITIONS FOR APPROVAL FOR USE PERMIT NO. 3485 (AMENDED) FINDINGS: 1. The Land Use Element of the General Plan designates the site for "Retail and Service Commercial" uses and a restaurant/brewpub is considered a permitted use within this designation. 2. The project is located within the Cannery Village/McFadden Square Specific Plan (SP -6) - Specialty Retail (SR) District that permits eating and drinking establishments with a use permit. 3. On -sale alcoholic beverage outlets are permitted with the approval of a use permit. 4. This project has been reviewed, and it has been determined that it is categorically exempt from the requirements of the California Environmental Quality Act under Class 1 (Existing Facilities). 5. The approval of the amendment to Use Permit No. 3485 to allow a full on -sale alcoholic beverage service will 'not, under the circumstances of the case, be detrimental to the health, safety, peace, morals, comfort and general welfare of persons residing or working in the neighborhood or be detrimental or injurious to property or improvements in the neighborhood or the general welfare of the City, for the following reasons: ■ The restaurant/brewpub use is compatible with the surrounding commercial. and nearby residential uses since eating and drinking establishments are typically allowed in mixed commercial districts. • Conditions have been added to address potential problems associated with traffic, parking, trash disposal, odors, and unsightly conditions. ■ A Condition has been added to require a special events permit for any event or promotional activity outside the normal operational characteristics of this restaurant business. ZU5 b. The proposed project is consistent with the purpose and intent of Chapter 20.89 of the Zoning Code (Alcoholic Beverage Outlets) for the following reasons: ■ The convenience of the public will be served by the sale of distilled beverages in a restaurantibrewpub setting. ■ The project is in an area where the crime rate exceeds the citywide average by more than 20 %. However, there is no evidence that this high crime rate is attributable to the proposed project. The number of alcohol licenses per capita in the reporting district and adjacent reporting districts is above the average for Orange County. However, the project has the only alcohol license for a brewpub, and the convenience of the public can be served by the sale of distilled spirits in a restaurantibrewpub setting. ■ The percentage of alcohol- related arrests in the reporting district in which the project is proposed and in the adjacent reporting district is higher than the percentage of alcohol - related arrests citywide.' However, there is no evidence that the alcohol- related arrests are attributable to the project. ■ No day care centers, places of religious assembly, park and recreation facilities, or schools are located in the vicinity of the project site. Residential uses are located in the vicinity of the project site. However, the project has been conditioned so as to address any potential impacts. CONDITIONS: 1. The proposed development shall be in substantial conformance with the approved site plan, floor plan and elevations, except as noted below. 2. That a covenant or other suitable, legally binding agreement shall be recorded against the off -site parking lot assuring that all of the requirements of Section 20.63.080 (1) of the Municipal Code, will be met by the current and future property owners. Said covenant or agreement may include provisions for its future termination at such time as the development on the building site is removed or at such time as the floor area devoted to the restaurantibrewpub reverts back to a base FAR use. 3. The applicant shall provide a minimum of one parking space for each 50 square feet of net public area before 5:00 p.m. and one parking space for each 40 square feet of net public area after 5:00 p.m. in conjunction with the restaurantibrewpub. 4. An amended off -site parking agreement shall be approved by the City Council, guaranteeing that a minimum of 41 parking spaces shall be provided on property iii G r0 located on Lots 18 -21 and portions of Lots 17 and 22, Block 230, Lancaster's Addition, for the duration of the existing and proposed uses located on Parcel 1, Parcel Map 92-40 (Resubdivision No. 527). 5. The property owner shall pay for 29 in -lieu parking spaces in the Cannery Village Municipal Parking Lot on an annual basis for the nighttime operation (after 5:00 p.m.) of the restaurant/brewpub use as agreed upon by the Sales Agreement between the City of Newport Beach and the property owner. 6. The net public area of the restaurant/brewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 p.m.) shall be limited to 1,500 square feet. The balance of the net public area shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m. daily. 7. The hours of operation for the restaurant /brewpub shall be limited to the hours between 6:00 a.m. and 11:00 p.m. Sunday through Thursday and between 6:00 a.m. and 2:00 a.m. on Friday and Saturday. &. All employees shall park either in the privately owned off -site parking area or in one of the municipal parking lots in the area. 9. The operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant. 10. The approval of this use permit is for a restaurant/brewpub and shall not be construed as the approval of a bar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service hours (food products sold or served incidentally to the sale or service of alcoholic beverages shall not be deemed as constituting regular meal service) nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and/or dancing. 11. No outdoor loudspeakers or paging system shall be permitted in conjunction with the proposed location. 12. A washout area for refuse containers shall be provided in such a way as to allow direct drainage into the sewer system and not into the Bay or storm drains, unless otherwise approved by the Building Department. 13. Kitchen exhaust fans shall be designed to control smoke and odor to the satisfaction of the Building Department. 14. All mechanical equipment and trash areas shall be screened from surrounding public streets and alleys and adjoining properties. 15. The development standards regarding walls surrounding the restaurant site and underground utilities shall be waived. -ANI— I iv YJ 16. Should prerecorded music be played within the restaurant facility, such music shall be confined to the interior of the building, and all doors and windows shall be kept closed while such music is played. 17. A special events permit is required for any event or promotional activity outside the normal operational characteristics of this restaurant business that would attract large crowds, involve the sale of alcoholic beverages, include any form of on -site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. 18. Should this business be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing company. STANDARD CITY REQUIREMENTS: A. The project is subject to all applicable City ordinances, policies, and standards, unless . specifically waived or modified by the conditions of approval. B. Signs and displays shall not obstruct the sales counter, cash register, seller and customer from view from the exterior. C. Loitering, open container, and other signs specified by the Alcoholic Beverage Control Act shall be posted as required by the ABC. D. The applicant shall take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, alleys and areas surrounding the alcoholic beverage outlet and adjacent properties must be taken during business hours if directly related to the patrons of the subject alcoholic beverage outlet. E. The exterior of the alcoholic beverage outlet shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. F. All owners, managers and employees serving and/or selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. To qualify to meet the requirements of this section a certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service or other certifying/licensing body which the State may designate. The establishment shall comply with the requirements of this section within 180 days of the issuance of the certificate of occupancy. v Zak G. The project will comply with the provisions of Chapter 14.30 of the Newport Beach Municipal Code for commercial kitchen grease disposal. H. All signs shall conform to the provisions of Chapter 20.67 of the Municipal Code. I. This use permit for an alcoholic beverage outlet granted in accordance with the terms of this chapter shall expire within 12 months from the date of approval unless a license has been issued or transferred by the California State Department of Alcoholic Beverage Control prior to the expiration date. J. Coastal Commission approval shall be obtained prior to issuance of any building permits. K. The Planning Commission may add to or modify conditions of approval to this variance upon a determination that this variance causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. yr 209 PART IV: (Continued) B. Project Description and Justiftation When the Newport Beach Brewing Company (NBBC) opened four years ago it was one of the first "breweries" in Orange County and, if for no other reason, did well due to the uniqueness of being a restaurant/bar that brews its own premium beer on -site. We at the NBBC are proud of the quality track record we have established for quality food, friendly service, as well as, our award winning beers. However, now there are approximately sixteen breweries in the county and therefore, over the past couple of years the uniqueness /trend of the "brewery" concept has faded. In an effort to remain competitive NBBC management has consistently made adjustments and improvements to its operation to attract a broadened customer base. We have from day one attempted to be more of a restaurant than a "bar ". We look to continue that trend by offering an even more upscale menu to complement items like the New York Sirloin, Seared Ali Salad and the Cioppino that we currently serve. As we have begun to upgrade our menu we have noticed we receive a lot more requests for cocktails and after dinner drinks (e.g. martini, Irish coffee etc.). Therefore, we now feel it is necessary to apply for an ABC No. 75 alcohol license, in order to satisfactorily serve our broadened customer base. We want to be able to offer a greater variety of beverage choices for all our customers at both lunch and dinner. It may be worth noting that when the brew /pubs concept first came about in California, there was a state law that prohibited brew /pubs from serving alcoholic beverages other than beer and wine. Since that time, it has become apparent that there is no need for such a restriction to be placed on brew /pubs and therefore, the state has repealed that law. We want to be perfectly clear that we are not looking to implement any drastic changes to our existing format. We are not and do not have any desires to become a nightclub, dance club or the like. That is not who or what the NBBC is or will ever be. We at the NBBC plan to build upon our existing clientele base, which includes a diverse mix of both younger professionals and older patrons of which most are locals. During the summer of course we also attract many of the peninsula's visitors. The NBBC is a local eatery that is simply attempting to cater to the desires of a broader base of clientele, by upgrading our menu. We feel confident that the additional alcohol beverage service will help compliment our expanded menu and keep the NBBC competitive. As a result the Newport Beach Brewing Company will continue to be one of the most fun and friendly places on the peninsula for residents and visitors alike to eat, drink and socialize. �ly 2 �Q N w a cC cn cc cn > Cf) City of Newport Beach Planning Commission Minutes August 5, 1999 INDEX SUBJECT: Newport Beach Brewing Company Item No. 1 2920 Newport Boulevard Use Permit No. 3485 A • Use Permit No.3485 (Amended) An amendment to on. existing use permit to allow a change in Alcoholic Denied Beverage Control license type to allow full alcoholic beverage service. Senior Planner Patrick Alford noted the following: • The application is for a change from a Type 23, Small Beer Manufacturer to a Type 75, On Sale General Brewpub. Under the provisions of the Alcoholic Beverage Outlet Ordinance, it requires an amendment to the existing use permit. • The Planning Commission must consider these factors: use serves public convenience or necessity; the crime rate in the reporting district; the number of alcoholic licenses per capita within the reporting district; the number of alcohol related calls for service, crimes and arrests within the reporting district and the proximity of the alcohol beverage outlet to residential districts, day core centers, pork and recreation facilities; basic religious assemblies and schools. • The issue of public convenience or necessity - there ore currently 24 on -sale establishments providing full alcohol service in the area. However, the project is the only brewpub in the City. • The issue of crime rate in the reporting district - significantly exceeds the citywide average. Under state law, this constitutes an undue concentration of licenses and the Alcohol Beverage Commission is required to deny the application unless the City determines that the public convenience or necessity is served by the issuance of the license. The Police Department has reviewed the project and recommends that the Planning Commission review the application in -light of the larger issue of the intensification of alcohol and related uses on the Balboa Peninsula, especially in the Cannery Village area. • The issue of over- concentration - the number of alcoholic beverage licenses per capita in the Census Tract 635.00 exceeds that of the County. This also constitutes undue concentration under state law. The ABC is required to deny the application unless the City determines that the public convenience or necessity is served by the issuance. • The issue of alcohol related arrests - in the Police Reporting District No. 15, 65% of the arrests in the area are alcohol related which compares to 44% of such arrests citywide. • The issue of adjacent uses - it is a mixed commercial residential zoning district and there are residential units across 30th Street. There is always the potential of impacts to residents. Concluding, Mr. Alford noted that the facts support the finding that the use would be detrimental to the area because the public convenience or necessity would not be served by the proposed ABC license change. Also, City of Newport Beach Planning Commission Minutes August 5, 1999 due to the large number of alcohol related arrests in the area and to the over- concentration of alcohol beverage outlets in the area. this use would be detrimental to the area. However, the Planning Commission could also find that the issues have been adequately addressed by the current conditions of approval and the change in license type may not necessarily effect that operation. The public convenience or necessity could be served by the sale of distilled spirits in a restaurant brewpub setting. Commissioner Fuller noted that it is stated in the staff report that the Police Department has reviewed the proposed project and has no serious concerns with the current operation. Does that mean the existing operation with the existing liquor license or the proposed operation? Referencing Page 5, Table 1 he also asked what the units of comparison were per capita. Mr. Alford answered that it deals with the past operation and with what occurred in the past. The way the Alcohol Beverage Ordinance is set up. the concentration issue is addressed by way of a Census Tract. The information is not necessarily at a Reporting District level Assistant City Manager. Sharon Wood added that the population ratio is shown on Table 3. Page 6. that is by Census Tract which is a different geographic area. Mr. Alford added that the area is a mixed use, the population is relatively low compared to other areas on the peninsula. so that the number of licenses in that area to the ratio of population is fairly high. He further added that District No. 13 has more residential, there is very little if any, commercial. In District No. 16. it is predominately residential with some commercial. Commissioner Kranzley clarified with staff that Census Tract No. 635 added to Census Tract No. 628 would repi�esent.the entire population of the peninsula. Chairperson Selich asked the percentages of restaurant versus brewery pub? He was told that there are 3.244 square feet on the first floor, and the brewery occupies approximately 1.500 square feet of that. He then asked what the original intent of how the operation was going to be run. Planning Director Patricia Temple answered that the intent of the operation as originally presented was to be a restaurant with a brewpub. where they actually did on -site brewing of custom beers. It was predominately to be used as a restaurant. certainly alcohol was a feature of the operation as that was their niche in the market. It has been run primarily as a restaurant. Commissioner Kranzley noted that taking the entire population on the peninsula by adding Census Tracts 635 and 628, the population is 11.141 with 65 on sale licenses which is still 1 per 171 persons on the peninsula. [Now.4 2j� City of Newport Beach Planning Commission Minutes August 5, 1999 INDEX Mrs. Wood noted That the state law mandates that comparisons should be made to the average of the County, which for on sale licenses is 1 per 893 persons and we are at 1 per 171 persons which represents a significant difference. Ms. Clauson noted that the operation was also conditioned in the original use permit that require the service of alcohol as ancillary To the restaurant business and that There is no approval for any type of bar or nightclub. Chairperson Selich asked if other businesses such as This in other communities Typically have hard liquor service? Staff answered that one approved in Manhattan Beach similar To This project was recently approved with full alcoholic beverage service. Commissioner Tucker added that one across from the UCI in the Irvine Market Place has a full liquor license. Public comment was opened. Sean Niedelman, operations manager of the Newport Beach Brewing Company noted: • This is an established restaurant that also brews its own beer, catering To all Types of customers. • The restaurant has been looking for ways To improve service and acquiring This liquor license is one of Those ways. • The current menu offers variety .of foods resulting in food sales of 65 %, of total sales. • The restaurant is losing customers due To lack of cocktail service. • We want To compliment the enhanced menu and capture a more diverse clientele by acquiring_this license. AT Commission inquiry, Mr. Niedelman answered that They are applying for a new license. Captain Tim Newman of the Police Department commented that it is the Police Department's position that there already is a significant impact in this general area of the peninsula due to alcohol consumption. The Police Department is not comfortable advocating a change one way or another and felt that would be something most appropriately handled by this policy making level of government. The Police Department wanted the Planning Commission to address that specific issue. All the statistics used by staff came from the police records and indicates that the police do have a problem and it does effect our level and volume of DUI's and alcohol related offenses that occur in this area. In answer to Commission inquiry, he added that it is difficult to predict if a change in the license from beer to hard liquor would make a 2�5 City of Newport Beach Planning Commission Minutes August 5, 1999 INDEX difference. It depends on the operator. The City has bars with a wide variety of conditions and restrictions on their ability to conduct business and some the Police Department has chronic and current problems with and others never have problems. The Police Department doesn't have problem that end up being detrimental to the community. with an operator whose staff is well trained and who runs a good operation. In this particular case we are dealing with a land planning issue and since this will be with the property. regardless of who the operator is. the Police Department is not in a position to say what this operation will be like in the future. Since the first of the year, the police have arrested 941 individuals for either DUI or who were drunk in public. Of that number, 375 of those individuals were in this Reporting District No. 15. This district is the area between 20th Street to 32nd Street, between the ocean and the Rhine Wharf/Lido Peninsula area inclusive. It has always been a very active area of the City. In response to where they have been drinking. the 681 who responded only 5 of them said they had been consuming alcohol at this establishment. Stepping up from a beer license only. to a full alcoholic beverage service can step up the number of incidents. but it depends on the operator and how he handles his staff. Commissioner Kranzley asked about the number of responses (681) where were they drinking and how many of those bars were on the peninsula? He was answered that the greatest response had to do with people who were drinking at a private party, 193 were drinking at locations outside the City. 32 said they were drinking at home. Continuing. Commissioner Kranzley noted the following: 407o of the DUI's and drunk in public has to do with alcohol on the peninsula. A year ago. we added a policeman that basically covered Cannery Village. Is that 4017a consistent with prior years? Is the 375 up because we have greater enforeament in the area? Captain Newman answered that over the last several years. the crime rate has continued to diminish. As a result of that. the officers have more time to do other things. Resulting from that efficiency. the officers can be and are more proactive to deal with problems. The additional efforts put into Cannery Village last year involved a police presence on 3-4 nights on a weekend. In Reporting District 15, 488 said they were drinking in town and 300 of those were drinking in this area. Commissioner Kranzley asked if the officer being in the Cannery Village area helped? He was answered that it helped by providing crime deterrence with a police presence. The private security guards are no longer being funded. Chairperson Selich asked if the police department view this business primarily as a restaurant. to which he was answered. yes. 5 M 2 City of Newport Beach Planning Commission Minutes August 5, 1999 Commissioner Tucker noted that there seems to be so many licenses in this district that if you converted one from beer and wine to full alcohol, you are not making available a produce that is not already available in the district. Does it really make a difference? Captain Newman stated that is a decision that the Planning Commission is going to have to make. In this particular case, the police have not had a problem with this operator under the current conditions. Buzz Person, 507 29th Street noted that he has been an advocate for this establishment and is a current customer. This proposed application is a land use issue and has nothing to do with the operator. The City Council has indicated in recent actions taken that there is a problem in this particular area. The switch from beer and wine to hard alcohol is an intensification of use. While this operator is a good operator, I would be concerned with what might come down later on. Two years ago in the Village, there were a lot of problems. Since then, things have gotten much better. Part of that is due to action taken by the City Council and the Police Department. What the residents don't want is to have an unbearable living environment. Things are much better today. Chairperson Selich asked about the approval for Aubergine's conversion from beer and wine to full service alcohol and the difference between that and this project. Ms. Temple noted that the Aubergine restaurant has more limited hours of operation and is a much smaller establishment. There is no area within the restaurant set aside exclusively for the consumption of alcohol. The Newport Brewing Company, while primarily a restaurant, has an area where alcohol is consumed mare.e=Iusicely. Mike Madlock. 113 31st Street, Vice President of Newport Beach Brewing Company noted the following: • Most of the new brewpubs are opening up with full liquor license, which is something that we could not do when we opened up 4 and %z years ago. • As a local resident, I want to keep peace in the neighborhood. One of the problems that existed in the post is being taken care of with the closing of Snug Harbor and the Cannery Restaurant. • We have no pool tables and no entertainment. • This is a clean operation and concluded by encouraging the Planning Commission to approve this application. Commissioner Fuller clarified with staff that wine was allowed under the existing license. INDEX �'7 City of Newport Beach Planning Commission Minutes August 5, 1999 Keith Vohr, 415 Town Square lane, Huntington Beach noted the following as a share holder of the Newport Beach Brewing Company: Agrees with concerns mentioned in previous testimony. The issue of undue concentration is moot. We are not adding a new license in the area, rather, we are asking to modify an existing license. • We are a small subset of District 15. • The issue of crime with 5 arrests out of 680 is approximately 0.7 %. We are a good operation as shown by the numbers. The idea of adding alcohol service is to stay competitive and improve the restaurant. • The convenience is for those in the neighborhood. • We have had no protests from the mailings. The hours are from 11 a.m. to 1 a.m. on the weekends and 11 a.m. to 11 p.m. during the week. • All of the staff is ABC trained. • We are in compliance with zoning regulations as we exist now. • There will be no special events or promotions at the restaurant. Roz Salomony, 2600 Newport Boulevard, President of the Newport Beach Brewing Company noted the following: • The people who spoke before me operate the brewery. • We have been successful from the time the pub was opened. • As we grew into a restaurant, we find that our guests are seeking other flavors with their dinner. • We are asking for the alcohol to compliment these new requests. • 1 live in the area of the brewery and will do everything possible to maintain harmony. At Commission inquiry, Mr. Alford noted that the current condition of closing hours is until 2:00 a.m, Friday and Saturday, which was approved in 1993 by the City Council. However, the ABC license does restrict them to 1:00 a.m. closing on Friday and Saturday. Public comment was closed. Commissioner Kranzley noted that the Peninsula and specifically the Cannery Village have been an issue for a number of years. Citizens, Police Department and restaurants have spent a lot of time on trying to fix the problems in Cannery Village. As the Chairman of the Commission when it passed Bill Hamilton's Cannery Restaurant live entertainment and dancing, voted in favor of that after offering a condition that required the addition of a policeman to walk that beat and that would be funded by the applicant. The Planning Commission decision was overturned by the City Council. That sent a message to me, as well as the Alcohol Beverage Ordinance that was passed, that the City Council was serious about fixing the issues on the INDEX 2r�' City of Newport Beach Planning Commission Minutes August 5, 1999 peninsula that account for 40% of the arrests for DUI and drunk in public for the entire City. The concentration on the peninsula will not be increased but it would be intensifying a license because of the over concentration of alcohol serving establishments on the peninsula. The ABC has made it clear that they have to deny the application for the license unless it is determined that the public convenience or necessity would be served by this issuance. We have a number of establishments that serve liquor on the peninsula, and I don't believe we can find that the public convenience or necessity would be served by this upgraded license. The operator is a good operator, but this use and what we do tonight will run with the land. The next operator may not be as conscientious as this operator. I am not in favor of this application. Commissioner Fuller stated he was not in favor of this application due to the statistics presented specifically: • the 24 on -sale full alcohol service licenses in this area, • the crime rate that exceeds the City crime rate by 2587o, • the alcohol licenses per capita at 1 per 134 persons, whereas the County is 1 per 893 persons, • the alcohol related calls for service is 65% in this District and 44% city -wide • concern for the residential standard of living Continuing, he noted that he was around during the Cannery Restaurant discussion and it was very apparent that the residents in this area were most concerned with these alcohol - related problems. It would intensify problems that may exist if this application was approved. I like the concept of the brewing company and that is the use that was approved. Commissioner Tucker stated that Newport Beach is a visitor serving community and always has been. Comparisons to what the alcoholic beverage license is in other communities are not germane to our community. Switching the license will not make much difference: there: are plenty of places for hard liquor. The addition of another location would not create more opportunities to drink when there are plenty of opportunities virtually next door. I believe it would serve the public convenience or necessity and therefore I support this license conversion. Chairperson Selich noted that if this is primarily a restaurant and we give the full alcohol service to other restaurants, it seems somewhat discriminatory to me to single this use out and say we are not going to give them a full service alcohol permit. Again, thinking back to Aubergine realizing that there is a difference in scale. etc. the permit runs with the land. Another operator could come in and intensify that use. It we had a policy that we were going to hold the number of licenses fast within the area and people could trade the licenses around; I might feel more comfortable. Discussion on Aubergine by staff noted that if the bar or any area exclusively INDEX Ail z i9 City of Newport Beach Planning Commission Minutes August 5, 1999 would need a new use permit. Right now, there is only about 15 square feet. Commissioner Kranzley stated that comparing these two facilities is not a fair comparison, especially if there was intensification at Aubergine's it would come before the Planning Commission and I would not be in favor of it. Commissioner Tucker noted that at what point do you stop being a restaurant and start trending towards a bar. Is it proper to zero in on percentage of alcohol sales and how do you enforce that? Ms. Clauson answered that it is in the Code as for as a definition of a bar and how it operates. There are already conditions on the use permit that specifies the primary use has to be as defined in the Code and is with the service of alcohol as ancillary. We have an enforcement mechanism, the percentages of food service to alcohol service as one of the factors considered in the enforcement method. They have to report this information as part of the ABC license requirement. Commissioner Kranzley stated that there is also a land use issue in this area. There is a concentration of alcohol and liquor licenses, and it has caused problems and is currently causing problems. We are going to be losing a license there and maybe a second. This over - concentration has caused a burden on the residents as well as the Police Department. I don't get a sense that there is an economic issue and I don't think this is the time for us to be considering changing any liquor licenses. Chairperson Selich noted that the Council has spoken on the issue of alcohol service in the area and the intensification of license. I would like some kind of policy that would restrict the number of license and allow transference of the licenses within the area. I will support the staff recommendation. Motion was made by Commissioner Kranzley to deny the amendment of Use Permit No. 3485 A subject to the findings contained in Exhibit A. Ayes: Fuller, Selich, Kranzley Noes: Tucker Absent: Ashley, Gifford, Hoglund Abstain: None FINDINGS Exhibit "A" FINDINGS FOR DENIAL FOR USE PERMIT No. 3485 (AMENDED) The proposed project is located in Police Reporting District No. INDEX 2ZG City of Newport Beach Planning Commission Minutes August 5, 1999 The proposed project is located in Police Reporting District No. 15, which has a crime rate that exceeds the citywide crime rate by over 258 %. This constitutes an "undue concentration" of licenses under the provisions of Section 23958.4 of the California Business and Professions Code. 2. The proposed project is located in Census Tract 635.00, which has a ratio of alcoholic beverage licenses to population that is above the average ratio of Orange County. This constitutes an "undue concentration" of licenses under the provisions of Section 23958.4 of the California Business and Professions Code. 3. The public convenience or necessity would not be served by the granting of the amendment to Use Permit No. 3485 to allow a change in Alcoholic Beverage Control license type to full alcoholic beverage service because of the undue concentration of licenses in the area. Due to the undue concentration of alcoholic beverage outlets and their impact on the Cannery Village area, and because the public convenience or necessity would not be served, the proposed project would be detrimental to the health, safety, peace, morals, comfort, and general welfare of persons residing or working in the neighborhood of such proposed use and would be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City. INDEX Mock Residence Retaining Wall Item No. 2 1821 BayadereTerrace Modification Permit No. 4903 • Modification Permit No. 4903 Negative Declaration • cceptanceofaNegativeDeclaration Request to permit the construction 20 foot high rear yard retaining wall Approved which exceeds the permitted 6 foot heig it in the side and rear setback areas. The proposed retaining wall is intended bilize an unsafe slope and reclaim a portion of rear yard lost due to erosion. The ining wall will reclaim approximately 21 feet of rear yard surface area pre ' sly slope. In accordance with Section 20.33 of the Newport Beach Municip ode the approval of a modification permit is required for the height and location he proposed retaining wall. 10 22 CITY OF NEWPORT BEACH http: / /www. city. newport- beach. ca. u... cilAgendas /Archivel999/Mn09- 13.htm everyone who agrees with him to write their Council Member. PUBLIC HEARINGS 16. STATUS REPORT ON DEVELOPMENT AGREEMENT NO. 6 (THE IRVINE COMPANY, CIRCULATION IMPROVEMENT AND OPEN ,SPACE AGREEMENT [ CIOSA]) (contd. from 7/12/99 & 8/9/99). O'Neil opened the public hearing. There b -qng no testimony, Mayor O'Neil closed the public hearing. ' %,, to determine compliance of Council Member Glovit,,ftated that she is pleased to see that staff followed through wl.her suggestions and that proper fences will be erected. tp The motion carried by they , llowing roll call vote: Ayes: Adams, Glove, Thomson, Debay, Ridgeway, Noyes, Mayor O`Neil-r,, Noes: None Abstain: None Absent: None 17. APPEAL BY THE NEWPORT BEACH BREWING COMPANY OF THE PLANNING COMMISSION'S DENIAL OF AN AMENDMENT TO USE PERMIT NO. 3485 TO ALLOW A CHANGE IN ALCOHOLIC BEVERAGE CONTROL (ABC) LICENSE TYPE TO ALLOW FULL ALCOHOLIC BEVERAGE SERVICE. Mayor O'Neil opened the public hearing. Keith Bohr, appellant, 415 Townsquare Lane, No. 219, Huntington Beach, stated that he is an investor in the Newport Beach Brewing Company and a consultant on the appeal. He requested that their use permit be amended to allow full alcohol service so that the Brewing Company can remain competitive with the other restaurants in the area. Referencing Exhibit A (Findings and Conditions for Denial), he reported that they represented only .07 percent of the crimes in Reporting District 15 (Finding 1); that they are not trying to add a license, but are just wanting to modify their existing license (Finding 2); that they have the support of the residents within 100 feet of the restaurant, generate tax revenue, provide 45 jobs, and is the only brewery in the City (Finding 3); and that they disagree with Finding 4 because of their track record over the past 4.5 years and because they would not contribute to any of the detriments mentioned. Mr. Bohr respectfully requested that 18 of 30 C -2920 Development Agreement No. 6 CIOSA (38) Use Pe Newpo Brewin (88) �2 01/21/2000 3:52 PM CITY OF NEWPORT BEACH 19 of 30 http://www.city.newport-beackea.0 ... cilAgendas/Archive I999/Mn09- 13.hthn Council approve the Conditions for Approval (Exhibit B). He emphasized that the Brewing Company is a permitted use and that approving this will not be detrimental to the City. In response to Council Member Ridgeway's questions, Senior Planner Alford confirmed that the use permit is specifically for a restaurant/brewpub; that, if the Brewing Company fails, the new operator is obligated to run a restaurant/brewpub under the terms and conditions of the conditional use permit; and that the Newport Beach Brewing Company is the only brewpub in the City. Shawn Needelman, 46 Agostino, Irvine, Newport Beach Brewing Company Operations Manager, stated that he has been with the Brewing Company since it opened in April 1985. He emphasized that they are not a bar that serves food, but a restaurant that also brews its own beer; they do not have the lines that they used to; they do not have late night parties; they do not have a DJ, band, or any other form of live entertainment; and they do not have a small menu. However, he believed they have evolved into an established restaurant that caters to 20 year olds to seniors, couples and families. Mr. Needelman indicated that the Brewing Company is looking for something to improve itself and believed that acquiring the license does that. He reported that the menu is continually upgraded, that food sales have continued to make up a larger percentage of the gross sales, and that it makes up nearly 64 percent for this year's sales. He stated that the sales have leveled, are lower than they were last year, and they lose customers because they cannot provide what one or all the guests would like. Mr. Needelman believed that having the license will also benefit their regular customers because it will provide them with a choice. He clarified that they want to complement their enhanced food, wine, and special menu, and capture a more diverse clientele by acquiring this license. Council Member Glover indicated that she saw a statement that generally states that the Brewing Company will close if this does not occur. Mr. Needelman stated that they will not close tomorrow if they do not get the license; however, he reiterated that their sales are down and that they believe it could be attributed to them not being able to sell hard alcohol or spirits. Council Member Glover emphasized that only 4 Planning Commissioners were present at the meeting. Mr. Needelman believed that the Planning Commission probably denied their request because of the high concentration in Reporting District 15 and because they were not sure that adding this license would be beneficial to the Brewing Company or help the community in any way. He expressed the opinion that the license would allow the Brewing Company to improve the menu and reiterated that alcohol is needed to be competitive with other restaurants. Council Member Debay expressed concern with the concentration of bars in that area and that young people tend to jump from bar to bar during the summertime. This causes them 01/21/2000 3:52 PM CITY OF NEWPORT BEACH 20 of 30 http: / /www.city newpoR- beach_ ca. u... cilAgendas /Archivel999/Mn09- 13.htm to walk in the streets late at night and disturb residents. She stated that she is concerned that the Brewing Company will be more of a target for the bar hoppers if they are a full service bar. Mr. Needelman reported that they card everyone that walks in the door, they have never had problems with under -aged drinking or arrests, the amount of drunk driving incidents involving the Brewing Company is very minimal, the employees attend alcohol class, and managers are on the floor at all times. He believed it would be a benefit if patrons stayed at their restaurant rather than jump from bar to bar. Charles Huffine 3085 Yukon Avenue, Costa Mesa, expressed support of the Brewing Company's request and stated that he and his wife have been frequenting the Brewing Company for the last year. He indicated that they initially were not sure if the Brewing Company was a place they wanted to go to; however, the clientele has drastically changed to become a very comfortable place for a weekly visit. He believed that the patrons now range in age from the high -20's to the 60's and that they bring in a larger number of families. Mr. Huffine encouraged Council to consider the Brewing Company's request to have a full service liquor license because it will give them an opportunity to continue to be a successful business. He noted that the Brewing Company draws a lot of people from out of state and from the local community, and hoped that they could become a landmark restaurant. David Haithcock, 500 Newport Center Drive, stated that he works for a national bank trade association and that he entertains clients as part of his job. He expressed that he likes the Brewing Company because it has turned into a landmark for the City. He reported that he takes his clients to the Brewing Company for lunch or dinner, but that it is unfortunate that they have to leave after their meal because they want an after - dinner cocktaiL He expressed his support of the Brewing Company's request so that they can continue to prosper. Pua Huffine, 3085 Yukon Avenue, Costa Mesa, stated that she and her husband have been regular patrons of the Brewing Company for about a year. She indicated that she not only has gotten to know the employees, but has gotten to know people who also regard the Brewing Company as a home away from home. She stated that they not only find the establishment a great place to unwind, but a fine restaurant. Ms. Huffine reported that they never hesitate to bring friends, family, or business associates to the Brewing Company, or to recommend the restaurant as a premiere place. She believed that, if you are looking for something good about the City, the Newport Beach Brewing Company would be it. She stated that she has made it a personal goal to let everyone know that Newport Beach has many treasures; however, she would hate to see a place of value become a statistic because they could not stay competitive in a very competitive market. Ms. Huffine requested that Council reconsider this very reasonable request and allow the Brewing Company to continue to be hospitable hosts to their guests. Amy Anderson, 328 Fullerton Avenue, stated that she is an �y 01/21/2000 3:52 PM CITY OF NEWPORT BEACH 21 of 30 http: / /www. city. newport- beacb.ca.u...cilAgendas /Archive 1999/Mn09- 13.htm employee of the Brewing Company and read a fax that was sent to them by Robert J. Rosner of the Xerox Corporation. Mr. Rosner expressed his support of the Brewing Company's request to serve alcoholic beverages other than beer and wine. He indicated that he often takes customers to the Brewing Company and that the outing would be more enjoyable if he was able to offer them a cocktail before the meal. He added that the Brewing Company is a quality addition to the commercial establishments in the City. Michael Madlock, 113 31st Street, Vice President of the Newport Beach Brewing Company, hoped that the decision - makers have been to the Brewing Company since they have built a first class operation. He stated that the Brewing Company has been managed properly and would appreciate Council's support of the appeal. Orazio "Raz" Salmone, 2600 Newport Boulevard, No. 212, President of the Newport Beach Brewing Company, reported that he was one of the first breweries in the area and now there are 16 breweries. He noted that they no longer have lines and that he would rather build on the restaurant. There being no further testimony, Mayor O'Neil closed the public hearing. In response to Council Member Adams' questions, Mr. Borg clarified that the Brewing Company is not open until 2 am. because of an ABC condition which closes them at 1 a.m. on Fridays and Saturdays. Assistant City Manager Wood noted that Condition 10 indicates that the Brewing Company may not serve alcoholic beverages without serving the regular menu. Mr. Alford clarified that the Brewing Company always had a 2 a.m. closing time but ABC placed the 1 a.m. limit after the City approved them. Council Member Adams suggested that the condition be consistent with ABC's. Mayor O'Neil noted that page 1 of the staff report states that "...the ABC is required to deny the application for the license unless the City determines that public convenience or necessity would be served by its issuance." He expressed the opinion that the City is bound to follow ABC's denial unless they can find that the public's convenience and necessity requires its issuance. Ms. Wood reported that this is the State law that deals with areas where there is over - concentrations of liquor licenses and that Council Policy K -7 delegates that authority to the Chief of Police for most cases. She confirmed that the Police Chief could deny the license if he finds that there is no public convenience or necessity after Council approves it, but doubts he would do that. Additionally, since the City has a local alcoholic beverage outlet ordinance, one of the considerations for granting a use permit for a new or expanded alcoholic beverage outlet is to look at whether the public convenience or necessity is served. Motion _y Council Member Glover to reverse the Planning Commission's denial of amended Use Permit No. 3485. �25 2 01/21/2000 3:52 PM CITY OF NEWPORT BEACH 22 of 30 http://www.ciry.newport-bea,ch.ca.0 ... cilAgendas/Archive 1999/Mn09- 13.hbn Council Member Glover believed that this is a reasonable request. She noted that she can go almost anywhere to find similar establishments and believed that Council has a responsibility to be competitive with other cities. She expressed the opinion that the Planning Commission might have felt the same way if all the Commissioners attended the meeting. Council Member Adams requested that Council Member Glover amend the motion to modify Condition 7 so that the hours of operation for Fridays and Saturdays is from 6 a.m. and 1 a.m. Council Member Glover agreed. Council Member Ridgeway stated that the staff report contained a lot of testimony from the Police Department, but believed that they were not comfortable advocating a change because the Brewing Company is in Reporting District 15. However, it appeared that the Police Department did not have a problem with an operator whose staff is well- trained and runs a good operation. He stated that he is satisfied that they are very responsible, have trained their people, and run a good operation. He noted that there has only been one Police instance that involved the Brewing Company and added that he has patronized the Brewing Company. He reported that the Brewing Company had a toxic problem in which they immediately called the authorities. This also proves that they are responsive citizens because they stopped the problem and took responsive action themselves. He expressed support of the appeal, noting that there are two restaurants that are closing and two licenses that are being lost. He stated that he finds the Brewing Company to be a well -run operation and that he wants to give them an opportunity to continue. Regarding the land use decision, Council Member Ridgeway emphasized that the conditional use permit is for a restauranttbrewpub and that anyone who operates on that land will have to continue to use the conditional use permit and continue to operate a brewpub. He believed this helps prevent a problem if the Brewing Company fails. Council Member Debay expressed concern because the City has been sending a message to, Cannery Village that it does not want to intensify the alcoholic use and make a situation worse. Regarding Council Member Debay's questions regarding Standard City Requirement K, Ms. Wood confirmed that the Planning Commission can call this for review to modify or add conditions, or even conduct hearings for the possible revocation of this license if this adds to the intensity of the problems. Mr. Burnham suggested that the word "variance" be changed to "use permit" in this condition. He clarified that ABC handles their own permits, and added that, when Council grants a use permit, privileges /conditions run with the land and applies to subsequent property owners. In response to Mayor Pro Tern Thomson's question, Mr. Burnham stated that the standard to determine if they are complying is whether they are detrimental to the health, safety, and welfare of the community. Therefore, any factor tike intoxication, excessive noise, and fights /disturbances would warrant a call for a modification or possible revocation of the 01/21/2000 3:52 PM CITY OF NEWPORT BEACH http: / /www. city. newport- beacti. ca. u... cilAgendas /Archivel999/Mn09- 13.htm II conditions. I The amended motion to reverse the Planning Commission's denial of amended Use Permit No. 3485; amend Condition 7 so that the hours of operation for Fridays and Saturdays is between 6 a.m. and 1 am.; and change "variance" to "use permit" in Standard City Requirement K carried by the following roll call vote: Ayes: Adams, Glover, Thomson, Debay, Ridgeway, Mayor O'Neil Noes: Noyes Abstain: None Absent: None 18. VACATION AND ABANDONMENT OF A PORTION OF AN ALLEY Res 99- BOUNDED BY GRAND CANAL, BALBOA AVENUE, ABALONE AVENUE AND PARK AVENUE (LITTLE BALBOA ISLAND). Little B i Mayor O'Neil opened the public hearing. j Vacatio 1� re being no public testimony, Mayor O'Neil closed the public Aband hear' g. (90) Motion Council mber Noyes to adopt Resolution No. 99 -62 oron and abandonment of a 2.5 -foot wide strip of both sides of a 25 -foot wide alley on Little BThe mby the following roll call vote: Ayes: teams, Glover, Thomson, Debay, Ridgeway,i1loyes, Mayor O'Neil Noes: None N� Abstain: None Absent: None 19. AMENDMENT TO THE CIRCULATION ELE OF THE NEWPORT BEACH GENERAL PLAN TO RECLASSIFY THb6EGNIENT OF SANTIAGO DRIVE BETWEEN IRVINE AVENUE AN JUSTIN AVENUE AS A COMMUTER ROADWAY ON THE MASTER PLAN OF STREETS AND HIGHWAYS IGPA 98- 3(D)]. Mayor O'Neil opened the public hearing. Bryan Bond, 2431 Santiago Drive, stated that he has been involved with this issue for about four years. Mr. Bond requested and received clarification from Mayor O'Neil that Council intends to continue Agenda Item 21. 23 of 30 Res 99- GPA 9 Santiag Reclass (45) \*6 �,, 7-7 01/21/2000 3:52 PM B NIK 22 `� Exhibit No. 5 229 bLANK -- v REcr %i"ED M PLANNIN. , I RARTMENI CITY r,+.NEVIKIRTREACP wUli 11 2006 QM For discussion purposes, the NEWPORT BEACH g ,,(;�2111�1314(916 COMPANY ( "NBBC ") submits the following summary of the topics that they have raised and discussed with the City of Newport Beach and certain individuals that reside in close proximity to the brewery and restaurant. ADDITIONAL CONDITIONS OFFERED BY NBBC FOR USE PERMIT NO. 3485 I. Security Guards. Employment of 5 Security Guards with the primary function of controlling and patrolling the NBBC parking area. The specific duties for NBBC Security Guards will be explained to the City and can be memorialized in the conditions of approval. a. Noise abatement through notification b. Parking area enforcement of noise restrictions and nuisance activity c. Informing line that individuals can enter NBBC to use the restroom II. Bottle Recycling Program. NBBC has implemented a bottle recycling program that collects bottles inside the restaurant to eliminate noise. Also, large storage containers have been acquired to eliminate the "dumping" of glass and the associated noise. III. Trash Dumpster Area. NBBC will improve (including any feasible aesthetic treatment such as an enclosure) the trash dumpster area. NBBC has contacted the City for permission to improve the trash dumpster area. The enclosure will be locked and secure. IV. Alcohol Training. NBBC will require all (applicable) employees to complete an alcohol sales and training certification course. V. New Entrance. NBBC will consider the use of an entrance from the front of the building to alleviate the numbers of individuals that enter from the parking lot. Safety and suitability issues must be addressed for the following: a. Width of sidewalks b. Average line sizes at various hours of operation c. Potential new noise issues that may result from a new entrance VI. Tow upon Close. NBBC would consider implementing a towing procedure where vehicles parked in the NBBC parking lot after hours of operation would be subject to tow. NBBC CUP Law Group 703 Mil I es p 7037.001 NBBC's current position is that the conditions of approval for Use Permit No. 3485 have worked for the past thirteen years and do not need to be revised at the present time. However, they could be clarified to maintain the status quo operation of the brewery /restaurant. PROPOSED REVISIONS TO CONDITIONS OFAPPROVAL FOR USE PERMIT NO. 3485 OFFERED BY NBBC New Condition No. 9 "The service of alcoholic beverages shall be ancillary to the primary restaurant/ brewpub service operation of the restaurant. Accordingly, alcoholic beverage service is not permitted independent of restaurant food or brewpub services. " Condition No. 10. Add: "For purposes of this condition, "regular meal service hours" means the meal service hours regularly established by the restauranarewpub." The service of alcoholic beverages during regular operational hours of the restaurant/brewpub that do not include meal service is prohibited." NBBC CUP No. 3485 Mils Law Group 7037.001 2 23 Exhibit No. 6 -t33 Page 1 of 1 Campbell, James From: Joe Reiss [JReiss @anaheim.net] Sent: Wednesday, August 09, 2006 3:39 PM To: Campbell, James Subject: FW: Newport Brew Company Jim ..... Can you please forward this to the Planning Commissioners for the meeting next Thursday .......... Thanks Joe On Wednesday 8 -2 -06 a group of us from the area around Cannery Village met with Jim Campbell of the Planning Department and a manager and attorney from the Newport Brew Company to discuss concerns about the operation of the Newport Brew Company. During the meeting Jim Campbell asked a question about the operation of the Brew Company after 10 pm. We never really answered his question. On Saturday 8 -5 -06, at about 1045 pm myself and Drew Wetherholt went inside the Newport Brew Company to see how the business operated. We were greeted by a security guard at the door who was checking ID's. We later asked this same security guard why he checks ID's and he said after 9 pm the restaurant becomes a bar. He also told us that nobody under 21 was allowed inside after 9 pm or they would lose their liquor license. We went inside the Brew Company to find the entire restaurant full of individuals standing throughout the restaurant and sitting at tables. Music was playing extremely loud to the point you had to be right next to the person you were talking to and you had to speak loudly for them to hear you. We sat at a table and asked a waiter if we could order some food and he said the kitchen was closed and the only thing we could order was drinks. There were no pretzels, chips, popcom or any food at all being served inside the restaurant. Three security guards were inside of the restaurant and one was outside. It was obvious to me the Brew Company was operating as a "Bar". When you read the Conditional Use Permit (CUP) for the Newport Brew Company they are in violation of Conditions 6 „9 and 10. Condition # 6 they choose to ignore and have never complied with since they opened. In Condition # 9 there is no food served after 10 pm therefore alcohol is the primary item served. With regards to Condition # 10 the Newport Brew Company becomes a bar after 9 pm on Friday and Saturday nights. The evidence is overwhelming they operate as a bar and the management of the Newport Brew Company would probably admit it. What bothers me is how this has been overlooked by the city all these years. The City Council approved the operation of the Newport Brew Company with certain conditions. These conditions were presented and approved at a public hearing. These are the conditions the community wants the Newport Brew Company to operate under not the inappropriate way they are operating today. The Newport Brew Company should be required to meet the conditions that were approved by the City Council. Thanks for looking into the operation of the Newport Brew Company and please feel free to contact me if you have any additional questions. Joe Reiss Resident of Newport Beach 714 -497 -6428 'A” 08/09/2006 2 3� BLANK 235 bLAKIK i3 Exhibit No. 7 77 LAW K I- g 2� Aur11 -06 0146pm From-California Coastal Ms. Ms Mog Vaughn California Coastal Commission 245 W. Broadway, STE. 380 P. O. Box 1450 Long Beach, CA 90802 Subject: Coastal Permit Application No. Dear Ms Vaughn: +6626906084 nn-269 P.002/002 F -760 OCT 13 m CALIFORNIA COASTAL COMM1ssION SOUTH COAST DISTRICT 543 -137; 2920 Newport Boulevard As requested in the special conditions for the subject Coastal Permit Application, this letter is provided for the purpose of con$rming the action of the City Council of the City of Newport Beach relative to its approval of Use Permit No. 3485 (Revised). As indicated in the attached excerpt of the City Council minutes dated September 27, 1993, the City Council. aproved Use Permit No. 3485 (Revised) with the findings and subject to the conditions set forth in the City Council staff report so dated September 27, 1993. In sumarty, the City Council's action as it relates to the Coastal Commission's Special Conditions, included the following: 1. The 'het public area" of the restaurant/brewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 p.m.) shall be limited to 1,500 sq.ft. The balance of the "net public area" shall be physically closed off to the public by a fixed barrier and shall not be used until after 5 :00 p.m. daily. 2. The property owner shall pay for 29 in -lieu parking spaces in the Cannery Village Municipal Parking Lot on an annual basis for the nighttime operation (after 5:00 p.m,) of the restaurant/brewpub use as agreed upon by the Sales Agreement between the City and the property owner. Inasmuch as the above conditions have been established as conditions of Use Permit No. 3485, the City of Newport Beach will inforce said provisions in accordance with the Use Permit Procedures set forth in Chapter 20.80 of the Municipal Code. ,It should be further noted that Item No. 2 above, is in keeping with the City Council's action rescinding its previous action which allowed the applicant the daytime use of in -lieu parking in the Cannery Village Municipal Parking Lot. We hope that this information will be sufficient for your purposes, and should you have any questions feel free to contact Mr. William Ward in our office, at 644 -3200. truly VA o Q �S D. HEWIC R, Director ...plmn1ne0H1-w \up34W.?w 2 39 0 v A 23 2q0 B LA N K BLANK pia l NK Item 5 Minutes from August 17, 2006 Zq Z 5 BLANK Zy3 Planning Commission Minutes 08/17/2006 Page 18 of 49 . Condition 63 should clarify the times. �m sioner Henn would like to come up with solutions that will feel like there i 1 impr ment even with a slight increased in the intensity as measured by a p count. )mmissioner Ha s supported the operational reviews presented, but thinks if e parking standards d to be adjusted, do it through the code not through the )plication. ce Chairman Eaton asked if the ff had enough direction. s. Ung answered yes. ce Chairman Eaton continued the hearing to S ember 7, 2006. ce Chairman Eaton asked if Staff will have findings revised conditions for e hearing. Ung said Staff will prepare a resolution for approval itions of approval with the changes recommended tonight. was made by Commissioner Toerge to continue the Our Lady Quell Church Expansion (PA2005 -092) to the meeting of September 7, 2006. and None Cole McDaniel Newport Beach Brewing Company (Use Permit No. ITEM NO.4 2920 Newport Boulevard I UP No. 3485 e Newport Beach Brewing Company has operated a restaurant/brewpu rsuant to Use Permit No. 3485 since 1994. This permit was issued by the City Continued to 1993 and it was subsequently amended in 1999. The City has received severs 09/21/2006 mplaints related to the operation of the use and the Planning Commission will aluate the complaints, the operational character of the use and the condition der which the use operates. At the conclusion of the hearing, the Commission iy require alteration of the operation or it may delete or modify conditions of proval. The Commission also may conclude that no changes are necessary and rocation of the Use Permit is not being considered at this time. stant City Attorney noted that Commissioner Hawkins recused himself item due to the appearance of a conflict. Commissioner Hawkins agreed sed himself. Campbell, Senior Planner, gave an overview of the staff report noting: . The Newport Beach Brewing Company was established in 1994 by ap of a Use Permit No. 3485. http: / /www.city.newport- beach. ca .us /PlnAgendas/2006 /mn08- 17- 06.htm 03/19/2007 Z�y Planning Commission Minutes 08/17/2006 . In September 1999, the City Council approved an amendment to the permit that approved full alcoholic beverage service with the sale of disl spirits. . The City, earlier this year, received a complaint letter regarding operation of the establishment from a group of residents in neighborhood. Those complaints relate to the operation itself and pi behavior around the establishment. . A report was presented in May of this year at which the Planni Commission asked for an additional hearing to review the application a look at whether changes need to be made in the operation or conditions approval. . The current report outlines questions and asks for clarification of what authorized. A restaurant/brewpub was authorized. The residents con the facility is being operated as a bar primarily after 10:00 p.m. and operation is leading to nuisances in the neighborhood. . Is K a bar at those hours, and is it authorized pursuant to the use permit? Staff is asking for clarification on condition 10 (page 3 of staff report). . In staffs opinion, a restaurant and a bar were authorized. Can a I operate without the restaurant being there at the same time is a question. . Historically, the City has looked at these operations and balanced the hour, that it has operated primarily as a bar against the hours it is operates predominately as a restaurant. If the primary activity is a restaurant, the use is deemed a restaurant. We believe that is what is happening there today. There is food service during those hours and up to recently they have had : limited bar menu in the late evenings. It might not constitute regular foot service, but food is available most of the time. What staff is looking for, is what was authorized, and then we can look whether they are operating with the use compliant with the conditions approval. There is a side issue with condition 9 that indicates the operation of brewery and the service of alcoholic beverages shall be ancillary to primary food service operation of the restaurant. In that condition we saying it is a restaurant and food service is really the primary use. So tt is a question as to whether or not, alcoholic beverage service has i become the primary use. In addition, there is no time limit to this condition. After 10:00 p.m. in the evening, even the General Manager at the May meeting, indicated that the primary sales during those late evening and early morning hours is alcohol. Again, that is more like a bar and goes to the original question, what did we authorize? . Another issue that has been raised is there is a current limitation on dining room area during the day time. There has been a condition the http: / /www.city.newport- beach .ca.us /PlnAgendas /2006/mn08- 17- 06.htm Page 19 of 49 03/19/2007 Zq5 Planning Commission Minutes 08/17/2006 applied in 1999 which limited it during the week. There is also a Coas Commission permit that would indicate it is a daily limitation, at least frc their perspective. The City is charged with enforcing this action based up a commitment that the City made in 1993 to enforce this provision. The C has been enforcing it on the weekdays and not on the weekend. There an issue on how this condition has been worded and enforced, and whetf or not the condition applies daily. The brewpub has had the full dining open on the weekends. The langu of the Coastal Commission condition alludes that they shouldn't be. City's condition can be interpreted both ways because it indicates "Mon through Friday" but also talks about the physical barrier being This condition seems to contradict itself and should be modified at this time. there "daily ". clarified an( The residents have indicated that there is a basic lack of control of pat in the parking lot. In the late evening a queue forms outside this pop establishment that is pretty much at capacity in the late evening and e morning hours. These folks can at times be boisterous and that leads variety of nuisances. The question is, is there control in the parking lot? The brewing company has security guards there and they represent to that they are doing their best to control the patrons in the parking lot. GI the proximity of the queue line to the residents, there may be way! alleviate some of the problem by relocating the line to the front of building close to Newport Boulevard. Other folks may be impacted by di that and there may be a need to change the patio area to bring people That might work in the evening hours to alleviate some of the issues in parking lot given the fact that there are residents living adjacent to parking lot. Another issue is whether or not they have complied with training progran that is required by the use permit. The City required that the manager proprietor and all employees undergo responsible alcohol training. Tha condition has not been complied with and since the City has informed the applicant, they have indicated that this training has been completed. However, there is no evidence to date. The purpose of the condition is tc make sure that the people serving alcohol are trained and serving in a responsible manner. A lot of the complaints that the residents are making tc us are in most cases directly attributable to the consumption of alcohol. We are hoping more responsible sales of alcohol and the proper training of staf may alleviate some of the ongoing issues. The Cannery Village Concerned is a group of residents who have indicates that they would like to see changes to the conditions that have beer forwarded to you and that is something that can be considered this evening. Staff is recommending that we change or modify conditions 9 and 10 clarify specifically what the Commission believes was authorized in 1999 eliminate ambiguity in those conditions. Based upon the determination the use, we can go forward and modify those conditions to affect positi change and reduce some of the nuisances. http: / /www.city.newport- beach. ca. us /PlnAgendas /2006 /mn08- 17- 06.htm Page 20 of 49 03/19/2007 N Planning Commission Minutes 08/17/2006 . There are a variety of complaints specific to the operation, trash encic dumping of bottles, and property maintenance occurring at hours that otherwise disturb residences. We are looking at the screening of the enclosure and to alleviate some of those nuisances through conditions. The Police Department is here to give testimony on law enforcement issue: that have occurred there, as well as the Code Enforcement officer who ha: conducted an investigation, a report of which has been provided for you consideration. ;e Chairman Eaton asked if there are certificates that the applicant can p the City that would verify that the alcohol training had been accomplished. Campbell answered he is not aware of how that training was provided and aware of the availability of certificates. He had been assured that they ha n through that training. As enforcement of that condition, he would like to s ie evidence that they have gone through that training. nmissioner Henn noted his confusion on the range of remedy that is availal this matter. He presumes it can include a change in hours of operation, ott frictions on how the establishment operates, does it also include revocation distilled spirits license? H asks the question for a better understanding of t ge of remedy that is before this body. Campbell answered that the Commission can change the conditions roval, which may change the nature of the operation, but revocation has n noticed here. Can they revoke that one license type, it wouldn't revoke re use permit but it could be a condition change. iron Harp, Assistant City Attorney, noted the procedure for revocation is laid Chapter 20.96 and there are very specific procedures that need to be follov fore this body can consider a revocation. It was the intent to bring this ma' ck for at least one more hearing, so the purpose tonight is to primarily have ;cussion of the items, discussion of what, if any, conditions you would like to )dified or additional conditions, and whether or not a revocation hearing we appropriate, and we will bring it all back the next time. Henn noted that the range is wide open with the proper noticing. Ir. Harp answered yes, there are specific findings that are needed for revocation. ice Chairman Eaton noted the revocation would apply to the City's permit, no ie Alcoholic Beverage Control Permit, correct? Ir. Harp answered, yes. ice Chairman Eaton asked if there had been any investigations by the ABC, anc so, do you know what the results were? Campbell answered, yes there was an ABC investigation that began it uary. The operation was visited and the police were consulted, the finding: not conclusive to take any particular action and the investigation was closed. Page 21 of 49 http: / /www.city.newport- beach. ca. us tP1nAgendas /2006 /mnO8- 17- 06.htm 03/19/2007 Zq / Planning Commission Minutes 08/17/2006 Page 22 of 49 Harp noted the ABC is a different procedure that is set up under inance and is different from the revocation. Wood noted that part of what Commissioner Henn was trying to get at the distilled spirits was something that was added to this use permit at s( t, so there is a condition that allows that, and would it be possible for fining Commission to delete the condition allowing that portion of the opera out going through the full revocation procedure? Harp asked for more history. Campbell answered that in 1993 a use permit was authorized to operate u pub under a Type 23 license. In 1999 there was an amendment to the u: nit that authorized a Type 75 license, which is a full alcoholic beverage servi brew pub. If you were to do that you would be terminating the amendme was granted in 1999. There isn't a specific condition that authorizes th ise type. Harp asked if there was one use permit. Campbell answered yes, one use permit that was just amended. Harp noted that, in general, if you take that type of measure, I recommend th give full notice. You still have to make the findings for basically a simil idard for revocation as far as the impact on the general welfare of tl imunity. We will notice it for you and bring it back at another hearing if that iething you would like to consider. Chairman Eaton clarified that the modification to expand from beer and w ation to a full distilled spirit operation was first applied for and denied by ning Commission and then granted by the City Council, and it was at t I that the applicant sought the Type 75 license from the ABC Board once approval for that kind of license. Campbell confirmed that was correct. >sioner Toerge asked which condition allows for the full bar and full or the provision. Campbell answered there is no condition that specifically addresses that. Th( ditions for the amended use permit are on pages 18 -22 of the staff report. re is no specific condition related to the license type but the project descriptioi n which the amendment was approved was clearly for that license type. ommissioner McDaniel noted that hand written page 129 of the report )out that in a discussion of August 5, 1999 from the City Council. The issue ken up by the City Council and the vote was on page 131, which shows w e Council was going and how they voted. ioner Toerge noted there must be something more than the minutes izes this. r. Campbell answered that on page 100 is the staff report of the Plann http: / /www.city.newport- beach. ca. us /PlnAgendas /2006 /mn08- 17- 06.htm 03/19/2007 Z4C Planning Commission Minutes 08/17/2006 Page 23 of 49 mmission, and the City Council's report is on page 97, and the minutes for tt etings are after that. I wanted to give you that so you could see what tl uncil was looking at in 1999 and, indeed, the project description is for a Tyl license. . Wood noted handwritten page 19 of Exhibit B Findings and Conditions t Droval for Use Permit approved by the City Council 09/13/1999 and, assume o is an exhibit to the resolution that approved it. One of the findings is tl rvenience of the public will be served by the sale of distilled beverages in taurant/brewpub setting. Harp noted he will take a closer look at these conditions but the Commis tell us exactly what they are interested in doing then we will take it back it up to come back in the proper form procedurally. imissioner Peotter noted condition 7 on handwritten page 20 says the hou limited 6 a.m. to 11p.m. Sunday through Thursday and only on Friday ai irday extended to 1 a.m. The staff report includes Thursday, I don't knc :h is which. Cosylion, Code and Water Quality Enforcement Officer for the City port Beach, gave an overview of his report, noting: . Received complaint letter from residents of Cannery Village noting concerns and complaints related to operations at the Newport Brewing Company. . We were asked to take a look and ascertain whether the complaints happening or not, and to do a fact finding on what was actually taking there. We went there on three separate occasions. First one was February 2 which was a Thursday night at approximately 9:45 p.m. There was not a of activity at the bar or outside the parking lot. The parking lot lool relatively clean, there was trash but not a nuisance. There was no que line and you could not hear voices from the patio that night. . The second trip was on February 4th which was a Saturday. It essentially the same thing, no queue line, the parking lot was pretty maintained. . The final visit made was on February 10th, which was a Friday night. Or that night there was a queue line, some individuals in the parking to screaming at each other, there was a lot of loud conversations going on anc the parking lot was clean but a lot of noise and volume going on from the patrons at the Brewery. He contacted the on -duty manager, Jerry Kolbly on the premises and discussed concerns about the noise from the queue line patrons. We discussed options such as moving the queue line to the other side of the building or to the front. Also discussed some of the other concerns in the complaint letter such as the trash. Mr. Kolbly agreed tc have his staff monitor the parking lot for trash. . We had a good discussion that night relative to what was in the comp) http: / /www.city.newport- beach. ca. us /PlnAgendas /2006 /mn08- 17- 06.htm 03/19/2007 Z q Planning Commission Minutes 08/17/2006 letter. I followed up with him the next week and had more discussions. . In terms of the property and activities occurring in the early morning hours, brought that up to Jerry about the bottles being picked up and obviousl making a lot of noise during the process. Jerry was asked to see if thos activities to be made after 8 a.m. as a help to the community so they woul not have to have those early morning wake ups. . In response to trash and debris issue, we do regular drive bys through tt area. In terms of the amount of trash, there was general trash but it was massive amounts of trash laying all over the parking lot so we did not iss any notices. We did ask Jerry to have his employees do general sweeps there too, to make sure it is kept clean. . There was also the issue of closing off a portion of the area before 5 p.m daily. We went out there on one occasion and they did have it cordoned of so that a portion of the business was shut off. . That concludes a report on the investigation. Chairman Eaton asked the timing on February 10th. He was answered about 10 p.m. and the queue line had about 10 to 11 people stretching fro front of the building to almost where the alleyway was. ommissioner McDaniel noted that you have to respond when you get compl id this complaint was in January so you dealt with it in January and Febru ie complexity of this kind of situation changes when it is cold outside and pe to work in January and February as opposed to summertime. I have iestions. Were you able to look at this place June, July or August maybe ay, and were you able to look at it after 11 p.m. at night? Cosylion answered we do not usually go out after certain hours for as as we are not police officers. So we let the police handle the late ,ity. But no, we have not gone out there during the summertime. We h ;fly received complaints relative to loud noise, we have only two wary that we have documented. Any of those complaints would have arded on to the Planning Department. Chairman Eaton noted that it sounds like when you went out 45 minutes at 10 p.m. that there was more activity at that point and there was the q Cosylion answered that on each day they went out around 9:45 or 10 p.m. Saturday night there was activity around 10 p.m. Harp noted his opinion that you would schedule an appearance to revoke th �ndment to the use permit. It will be the proper procedure for handling ause there isn't a condition that relates to full on -sale of alcoholic beverage in order to basically deal with that issue, you need to revoke the amendment. % Chairman Eaton stated you are talking about not revoking the entire revoking the amended portion. Page 24 of 49 http: / /www. city .newport- beach.ca.usIP1nAgendas /2006 /mnO8- 17- 06.htm 03/19/2007 2Z jO Planning Commission Minutes 08/17/2006 r. Harp answered that's correct. Vallercamp, Detective Sergeant with the City of Newport Beach, noted: As far as changing from a Type 75 license to a Type 23 license, w would be a full bar to the small batch brewery, that would be something the ABC would probably look into. They are the arbiters of those things. We have a sophisticated method of documenting all our calls for service any given area and I had my detectives run a report from January 1st of'( to August 10th of '06, so it is roughly an 8 month period. I used locatioi such as in our computer aided dispatch, when an officer calls out an active they could say the Newport Brewery, the Municipal Lot, 30th and Villa, user all those parameters, I checked the area for our level of service and he many calls we have had in that vicinity. During that time frame of Janua 1st through August 10th, there were 41 entries. 41 activities listed at ti Newport Brewery, the Municipal Lot, 30th and Villa, etc. , 23 of those ca were calls from the public. They will require further research to determir the disposition. The remaining 18 of those were bar checks, parking I checks, some of them could have been an officer using one of tho: locations as a landmark to call out a car stop or a pedestrian stop. In the City of Newport Beach currently we have 341 active ABC license Those establishments are authorized to sell alcohol in our City. In the a in which we report these, we break them down into reporting districts. ' reporting district we are concerned with here is reporting district 15. In reporting district 15, which is Balboa and 20th to Balboa and 34th Street, Newport Boulevard to the Coast Highway, in that triangular area there 73 ABC license establishments. In 1999 when the Newport Brewery Company applied for their Type license at that time there were 60 ABC license establishments in report district 15. There is a high concentration of outlets in this general vicinity. In 1999 the citywide total arrests there were 3,704, of those in the el City. 1,656 of those arrests were related to alcohol, either drunk driv drunk in public, those types of issues. In 1999 again in reporting district there were 624 total arrests, 65% of those were alcohol related, either dr driving or drunk in public. Bringing it to the year 2005 the citywide i arrests were down a bit to 3,115. The alcohol related arrests citywide 1,056 so we are talking roughly 33 %. In reporting district 15 in 2005 tt were 646 total arrests and the percentage of alcohol related arrests in specific reporting district was 65.4 %. So you can see we are pretty t here in reporting districtl5. Lastly, the State Alcohol Beverage Control had a case specifically with i Newport Brewery somewhere around April 11th of 2006 and they cloy their case on August 4th. At that point, the advised us, "the majority complaints were from the outside area." nissioner Toerge asked if the 341 outlets in the City and the 71 15 include retail outlets. Is there a breakdown? Page 25 of 49 http: / /www. city .newport- beach.ca.us/PlnAgendas /2006 /mnO8- 17- 06.htm 0 311 9/2 00 7 Z51 Planning Commission Minutes 08/17/2006 Page 26 of 49 Vallercamp answered yes. He can provide the breakdown at a ;sioner Henn clarified that the ABC investigation stemmed from the area? active Vallercamp answered that he had called the investigator who said tha their investigation and received no further information on what it pertained to. immissioner McDaniel noted that there has been input from some sources Police Department doesn't respond very well, and when they do, they say ught a place next to a bar you dummy what did you do that for? Would you respond to that. ective Vallercamp answered that is not a typical response of an officer. I going to say whether it occurred or not as 1 wasn't there. 1 would be surpri somewhat disappointed if an officer told me that. imissioner McDaniel asked do you believe that when there is a call that onse is fairly quickly? Can you give us a feel for response time? There is ation of negligence, it is the same old thing, it's just a bunch of drunks and not going out there because we're too busy over here doing some& )rtant. That's the allocution and I thought you would like to be able to respc at before ,tective Vallercamp answered we have more officers down here as there xe pedestrians, more parties down here, more ABC licenses and there xe calls in this particular area than any area in the City. We deploy very he wn here in this vicinity of the entire Balboa area. I would say our response probably faster than most in the county. iissioner McDaniel noted it would be fair to say that you're busy down he iy and you would already be here responding to something else, so y n't have to come from down coast. You've got adequate amount of pole attending to activities that are here. I just want to get the opportunity Vallercamp answered yes. Chairman Eaton asked about a copy of an article that appeared in t ster on July 7th that appears to quote, from the Police Department, incidei ad to bars in the City and the Newport Beach Brewing Company listed as t highest generator incidents between December 1st, 2005 and June 6th year. I am wondering if you can comment on that and its accuracy a :her these incidents can be attributed to these bars and if so how. ietective Vallercamp answered that it falls in line with the statistics that iven you, the 41 calls. This ended in June 6th and my statistics ended 0th. I think this is an accurate representation citywide. Chairman Eaton stated the article says most of the calls involve fights intoxication occurring outside the bars. Is that something that can ited to these incidents? http: / /www.city.newport- beach. ca. us /PinAgendas/2006 /mnOg- 17- 06.htm 03/19/2007 0 5 Z Planning Commission Minutes 08/17/2006 Page 27 of 49 :tive Vallercamp answered certainly alcohol plays a part there, rations and general boisterous behavior. This is such a highly conc( with so many bars and restaurants down there that serve alcohol. Chairman Eaton said what I was trying to get at was when you stE cing, I thought you had said that sometimes when you use tl fication criteria it's even possible for vehicle stops that happen to be at ection. So, I was trying to figure out if any of these incidents would I those kinds of things, or whether they really were problems associated of with this particular bar. ective Vallercamp answered he had spoken with Sergeant Harford and he I statistics from the same computer aided dispatch system that I did. Some ie could very well be the landmark of stopping a car at Cabo Cantii �efore it shows up as some sort of activity at that location. Chairman Eaton asked do you have any sense at all as to how many incidents really were related to the patrons of this bar? ie Vallercamp answered without hand pulling each event and each whether it was an arrest report or crime report of some nature, Ily reading each of them I don't. en Miles of Miles Law Group, representing the Newport Beach Brewi ipany, stated I am actually going to try to limit my statements to addressi e of the conditions that were raised in the staff report and some of t pretive efforts with respect to the main conditions 6, 9 and 10. 1 would like tit time for the General Manager to address some of the voluntary conditio have been proposed by the Brewing Company and the community outrea is that have been made to address what we think are the actual concerns tt Is the operation of the brewery and the Cannery Village. iition 6 - I don't really know if there is much of an issue to that with respect tc final word, daily. Normally when you interpret a condition that in specific erns the general and it is very clear from the very first sentence that the 1,50( prohibition is Monday through Friday. So, I believe the final word daily i; y a reference to the days in which you have the preclusion it applies. Actuall) second sentence is redundant and can be stricken if that would be z ondition 9 - addresses the issue ancillary. The way the brewery reads conditii you have three components. The operation of the brewery and the service coholic beverages shall be ancillary to the primary service operation of tl staurant. Again, during full hours of operation you are going to have differe eakdowns of food and alcohol and even beer. So really, especially the way th • alcohol licenses are drafted, they deal with quarterly revenue. I don't think it • most appropriate way just to focus in on an hour because there is going to I tomalies throughout the hours of operation. There are going to be hours th e 100% food service, or the lions share is food serve and there may by inute intervals it will be all alcohol. Really, condition 9, 1 think, addresses th td talks in terms of ancillary with respect to three components. I think that in tl rerall picture of the 13 years that this condition has applied, I think the conditic c drafted has worked and I don't think it needs to be modified. In terms arification we are willing to suggest clarifying language if that is the will of tl http: / /www.city.newport- beach. ca. us /PlnAgendas /2006 /mnO8- 17- 06.htm 03/19/2007 25 3 Planning Commission Minutes 08/17/2006 Page 28 of 49 mission. mdition 10 - I think boils down to the phrase, hours not corresponding to regul -al service hours, and I think Jerry will expand on the fact that full meal servii going to be provided through all operational hours of the brewery. 1 think th Is condition 10 to rest. Unless you are of the mind set that the regular me rvice hours can't be established by the Newport Beach Brewery Company. )uld also like to point out that condition 10 does reference alcoholic beverag, opposed to beer. I think conditions 9 and 10 do reference the fact that the Milled beverages being served, so there is a reference point in the conditions pport that position. tinuing, he noted with respect to a use permit with conditions, once they are �d upon, they become a fundamental property interest. I want to addresi imissioner Henn's inquiry about remedies and go into a little bit of what the idard is here for reviewing a conditional use permit. Just so everyone knows, independent judgment standard is what applies if a court were to review the on of a city. It is a far less deferential standard of review than I think you migh nally be used to in terms of discretionary approvals and is based upon actualh isional law out of 4th Appellate Division 3, which was the classic Goat Hil irn case in Costa Mesa, so it appears that drinking establishment make prett, d land use law. So, we are dealing with a fundamental interest here, it is ven ortant. We see a very big distinction between clarification and modifying o )king in part or in whole, conditions in this permit. would like to address the procedural question that the Commissioni dressed. I see it a little bit differently. It is true that Chapter 20.96 doe dress revocation. I would like to read Sub part A, titled Duties of a Plannir rector, which states, "Upon the determination by the Planning Director that thei reasonable grounds for revocation of a use permit or other discretional proval authorized by this Planning Code, that revocation hearing shall be set t Planning Director, the Modification Committee, the Planning Commission, i City Council, whichever took final previous action on the permit." The poii re, and it is a procedural one, is that I believe that in both 1993 and 1999 IF al action, with the coordination of the Coastal Development Permit, but initial th the use permit and in 1999 1 believe the City Council took the final action c at. So, the way I read revocation, if you determine that revocation is what A talking about I would have to say the public notice that was posted doesr :lude revocation. It didn't merely limit this hearing to reviewing the use permit, ates the Commission may also conclude that no changes are necessary. vocation, the use permit is not being considered at this time. That infers that initially being considered, so I hope that you do realize that revocation is n �cessary. I think to the extent that we are addressing the revocation issue It tial threshold question is whether there has been a determination by It anning Director and secondly, I believe that the City Council shall set th wring. There is a question as to whether what we are doing right now propriate. Moving beyond that, I would like to point out that, again in It ginal approval and again in 1999, in the staff report the actual essence of It e permit is that you have conditions that protect against these types isances and the finding that has to be made is that the use with the conditior consistent with the General Plan, the specific planning in the area and that thei no interferences with the public health, safety and welfare. I think with tha )se two express findings by the City Council and the 13 years that ha% inspired, I think that is really what this body is up against in terms of making http: / /www. city .newport- beach.ca.us/PlnAgendas /2006 /mnO8- 17- 06.htm 03/19/2007 0 %)q Planning Commission Minutes 08/17/2006 that somehow it is warranted to truly consider revocation or really antive modification to these permit conditions. would like to point out that there has been a lot of late correspondence and w idn't have the most formal presentation, but we had to deal with a lot of Jai Drrespondence. One of the addressed items was a receipt of August 5th ,ugust 5th was a date in question where there was testimony from a Mr. Reef, elieve, that somehow there was no food service in the late hours. That is a ;sue for the Commission and I want to provide this receipt that shows that 1:00 p.m. on August 5 that in fact full service was provided, half Chinese chicke Wad and fettuccine alfredo. That actually went on until 12:56 a.m. I don't know its was actually submitted. (he submitted it for the record). There is a lot take here and I would like to reserve time for rebuttal, or at least to respond I our questions, and I would like to hand this over to Mr. Kolbly to talk about the it nd outs of what has been offered by the Brewing Company to address nois ;sues and issue of parking lot, the queue, trash and whatnot. Chairman Eaton asked Mr. Harp to discuss issues of level of review mental interest and which body has jurisdiction to consider revocation am Harp stated continuing to look at the Code sections if there is going to be dification or addition to the conditions, then you are clearly the body that woe idle that matter. If it is revocation, the alcohol beverage ordinance, which 9060, is primarily the use permit that they were obtaining allows for it to be the Planning Commission, or the Planning Director, to revoke the permit and 6 the procedures to follow related to 28.9 says that it is set before the body tt k final action, the Planning Commission action was appealed to the C until and there is an express provision in 29.0640 that where I read it exeml appeals so I believe the Planning Commission would be the proper body ar revocation. As far as the standard of review goes, I don't think that is ue. You need to make a decision based on the record that is here before yc t would be the decision that would eventually be litigated. :e Chairman Eaton affirmed that this is the proper level to hear modification location. I assume also that whatever this Commission does can be appeal the Council. Harp answered yes. I. Miles noted that the majority of the conditions in the permit were in 1993, 1 don't believe there was an appeal at that point in time. ommissioner Toerge noted condition 9 is clear. The operation of the brew nd the service of alcoholic beverage shall be ancillary to the primary food sen peration. You used the word anomaly to describe certain hourly quotations, t our last hearing there was a statement by the general manager that 90% of �ceipts after 11:00 p.m. are from alcohol. You consider that ancillary? Miles answered yes. What I am talking about is if you take a deviation over hours of operation. Toerge answered I understand, but let's not do that. Page 29 of 49 http: / /www.city.newport- beach. ca. us /PlnAgendas/2006 /mn08- 17- 06.htm 03/19/2007 2 5 5 Planning Commission Minutes 08/17/2006 said 90% of the receipts are alcohol, do you consider that ancillary? Miles answered that the operation of the brewery and the service of alcoho )rages are ancillary to the primary food service operation of the restaurant. ration is not broken down into certain segmented hours of operation. Again point would be taking it to the logical conclusion, what happens to that 1! rtes, 5 minutes, it is ancillary within the language of condition 9. ssioner Toerge noted the service of alcohol is supposed to be tied eating hours that are certainly not after 11:00 p.m. Miles noted that for the brewery the regular meal service hours are all hours r. Kolbly, General Manager of the Newport Brewing Company, noted: . Referring to condition 6, during that time of the day the service is 100% fi in the area. Now, if you take the restaurant away from me on Saturday Sunday afternoons where I am strictly serving food in that area it will problematic. . My partners and I agree about the clarity of the conditions. . There will be a roof cover for the trash and we are discussing relocating line after 9:00 p.m. off the entrance off Newport Boulevard. . We have started discussions with security regarding the preparation of detailed security plan. . We have tried to work with the neighbors on how to work out the situation. Everything that we brought to the table was not accepted and the impression was that the neighbors wanted the establishment to be closed. . The business has been there over 11 years and there are barely any fights. You can go to Disneyland and see fights there. . This is a great establishment for the patrons and tourists all the way I Germany. Now, these residents that just moved in over a year ago saying we are no good. This is not the way we run things. mmissioner McDaniel noted there are some issues outside the establishme t you have no control over; there are some issues that your establishment ising in the neighborhood. My view to start with is to give you time to fix it ai and do better and then come back and see how you did. I am not interested ocation at this point, but there are issues in terms of trash, things patrons do community, and there are certain things you can do to fix it. If we can get yi ving towards that , which I think you are interested in doing, maybe all of tt i go away. The other side is the residents have to recognize that they boug nething next to where you are and they are going to have to recognize there ng to be some activity at that location and they are going to have to live wi t too. You both need to live together. I prefer you make attempts to fix tl ;h, bottle collection, locking off your parking lot and if there are people runnii Page 30 of 49 http: / /www. city .newport- beach.ca.us/PlnAgendas /2006 /mnO8- 17- 06.htm 03/19/2007 Z 5 Planning Commission Minutes 08/17/2006 Page 31 of 49 and in the neighborhood, it will not be your issue. The other issue I have Type 75 liquor license was given because you folks, at some point, request t as your customers need hard liquor with their food. So that was supposed ancillary as you wanted to bring other patrons in to get the food. That clearly what is happening here, its a bar after 11:00 p.m. r. Kolbly asked if the Alley Restaurant was a restaurant? He noted he conside a restaurant but that after 10:00 p.m. no food is being served there and a bar )ing on. Anytime a restaurant is open after 11:00 p.m., you are not a Denny's rictly serving food. The hours were given to us since day one, we have h ies to get in. There wasn't a problem then, but now all of a sudden there is. TI Deration has not changed. I offer full service meal all the way to closing. >ioner McDaniel noted the Type 75 license service of booze was to to the food and that is not the case. Chairman Eaton asked: . How long does the queue line get. . How would you move the line to the 30th Street side if you need to keep doors open to the parking lot? . There is a condition on the ABC license that the line shall not extend 30th Street. If you did have the line originating at the 30th St. en would it get so long as to encroach along the alley? . Is the kitchen open until closing? Kolbly answered: . 25 -30 people maximum. . It would be the south side open during the day and then closed at night the actual entry would by the fire line door and the line would run so towards the pier. I . The line is not starting on 30th Street, we will have to place a hole on patio with an entrance so it would run onto Newport Boulevard south. . Until we stop serving alcohol, those guys are cooking in the kitchen. comment was opened. Carson, owner of Rudy's Pub and Grill and property owner, noted: . He supports the development that has gone on in the Cannery Village. . There are responsibilities of the developers in the area and it should enforced by the City with the loft like environment mixed use to m people aware of what they are moving into. Maybe there could be sc htip: / /www. city .newport- beach.ca.us/PlnAgendas /2006 /mnO8- 17- 06.htm 03/19/2007 2 Planning Commission Minutes 08/17/2006 Page 32 of 49 sort of waiver, or signing off, that they are aware of the business operatic within the surrounding neighborhood that close at 2:00 a.m. and open 7:00 a.m. . The restaurant owners try to control people as they leave the establishi and we do our best job, but it is not always our patrons leaving establishments causing the problems. . It is tough to lay the blame on any one establishment. . I know that Balboa Imports is looking to become a loft environment behii us, which means our parking lot will open up directly to those new propose lofts and there is nothing that we can do when we let our patrons out keep them quiet. They are going to set off their car alarm noise and that always going to happen. There has to be some sort of leniency in dealh with the public, dealing with the business owners and the fact that we we there first. I know I put a lot of money in my building and to have this fig two or three years down the road will be a difficult pill to swallow. Dale, patron of The Newport Brewery, stated his support of th >hment, noting: . Family environment. . No way to quantify what responses that the Police Department has in area that are related to the bar itself. . They do a great job with the security at the door. . Food is served all night long. . It is a friendly atmosphere and people enjoy going there for drinks and it one of the few places in Newport that has a patio. . This is the kind of business you want to keep in Newport Beach and is r the kind of thing that you should shut down because some people moved next door to a bar. They knew it was there before they bought their place. Kokus, local resident, noted: . There is a lot of traffic from other restaurants that goes through Beach. . As a former restaurant manager, the stipulations brought up a education and addressing those issues are addressable and I believe they will be addressed by the applicant. . I am pro business and running restaurants in any city after 11:00 p.m., consumption goes down, that's just the way it is. . People choose to have a cocktail instead of food and we shouldn't http: / /www.city.newport- beach. ca. us /PlnAgendas/2006 /mnO8- 17- 06.htm 03/19/2007 Z 5D Planning Commission Minutes 08/17/2006 that. If you restrict one restaurant by limiting what they can do, you are setting a precedent and saying to other restaurants that when thei problems come up that you are going to handle it the same way. I think tha is a dangerous precedent. Markowitz, owner of a newer loft in the area, noted: . Loyalty of the business patrons is wonderful. As a business owner she appreciate it. . However, the business is not operating in a civilized manner. . None of us want to shut this down. . We are trying to bring some civilization to this establishment after a hour. . It is about business and I am happy that they are successful. . However, there is violent verbal behavior late at night that disturbs sleep. . There have been altercations between several of the neighbors and owners as a result of sleep deprivation. . If you are tired, you get angry. The parking lot is out of control. . It is a great business, but I would like to see some compatibility neighbors. . Stop the juvenile fighting, and if the law has to be a catalyst for that, then be it. . Being drunk in a parking lot is illegal. When we have called the police, the time they get there, the patrons are gone. . She noted episodes of urination during the day. . She asked that the consumption of alcohol be controlled. . The queue line is loud and noisy. McDaniel asked what time these problems are happening. . Markowitz answered it is after 11:00 p.m. and she had actually been at 1:30 a.m. by people in the parking lot last night. nmissioner McDaniel noted it couldn't be these people as the establishm( closed at 11 last night so it couldn't have been their patrons. I am trying what the problem is and I am not convinced from what you are saying that I it at 1:30 that they were their customers because they were closed. Page 33 of 49 hup: / /www.city.newport- beach. ca .us /PlnAgendas /2006 /mnO8- 17- 06.htm 03/19/2007 'L 5 1 Planning Commission Minutes 08/17/2006 Page 34 of 49 Markowitz noted clearly it was not associated with them but that she v rated because she is awakened so many times strictly from their parking queue line noise. I support the business, but can't we live together? Chairman Eaton asked how close she lived to the establishment. Are yoi of the dividing line between their parking lot and the municipal parking lot? e do most of these disturbances take place? Markowitz answered she is adjacent to the parking lot. Absolutely, and rbances happen on their parking lot. Green, local resident noted: . There are many businesses in the area. . The disturbances come from all the people coming home from all the bars the neighborhood. . You can't put the blame on Jerry's business and the argument that this stemming from the misuse of their permit is ridiculous. You have a bunch drunk people coming home. . He has watched from his patio the craziness of people going home and come from all around except Jerry's place as it is closed down. issioner McDaniel asked if they accumulate in the parking lot. Green answered they accumulate everywhere as they are parking in the on the streets; h has seen many fights on the sidewalks. ly Steed, local resident, business owner and a Cannery loft owner, noted: . The establishment is a nice one until after 9:00 p.m. . I did not realize when I bought my place that the Brewery operates as nightclub, they crank the music up and it is booze only. . The parking area is the launching pad for the whole peninsula. Where there more parking than at the Brewery. . I have tried to work with these people to come to some solution but it h been futile. . At night it is completely out of control. My house is used as a urinal, the has been blood on my property and I have seen fights coming out of t bar. Sometimes it is so violent that people have climbed over my fence get away from the brawl. . I don't call the police anymore because it is futile. . The Brewery is operating outside their use permit. The first thing it says http: / /www.city.newport- beach. ca. us /PbiAgendas /2006 /mn08- 17- 06.htm 03/19/2007 2 W Planning Commission Minutes 08/17/2006 they are not going to create a nuisance in the parking lot, and they do. . They have been uncooperative. . The violence is unbelievable. iy Lenard, local resident, noted his support of the restaurant. He has brought mily there many times as the food is excellent and moderately priced. ' �rvice and atmosphere are very friendly. He asked that it continue to operate. Stevens, employee of the restaurant and local resident, noted: . The waiters push food at the restaurant after 11:00 p.m. not we are told to as it is good for sales, but for every ticket w want a higher bill because that means a higher tip. only e are . Every person who sits down there is asked if they want something to e we let them know the full menu as opposed to being 'booze only.' We try push as much food as we can. . I was the waiter on August 5th, where some patron was told at 10:45 p. the kitchen wasn't open and we ended up with the half chicken salad midnight. I don't recall saying that then, I might say it later for whate� reason, but as I am there to make money I push sales as much as I can. . I have never seen 100 people in the parking lot and there certainly blood anywhere. >sioner Toerge noted the testimony of the General Manager was that was always open. You just said you would say it was closed at 11:45 r Stevens answered that was on him if he said it at all. When I am there, I food as much as possible. Callahan, local resident, speaking on behalf of her husband and his sts d they love the restaurant and when they get off work they go there late in t ing for food. If they don't have the opportunity to get there, I bring the food . The food is great and it is a great place to go with the family. mmissioner Toerge noted this is not how great the food is, it is about the imp the neighborhood and the late hours. I appreciate the fact that the food mil good, and the servers are nice, but that is not the issue. I encourage you about the issue that is the noise that is created, the impact on 1 ghborhood and the ancillary nature of the food. Jusco, local resident and regular patron of the restaurant noted his support establishment noting he has brought his family there many times. He stat this is the kind of establishment that the City should be supporting and i ping their hands. The Code officer and the detective both gave no spec dems at the Brewery. ABC couldn't find any problems, so what is the iss �r than this Commission gave approval to build a home in a retail area that ji pens to be right behind the Brewery. Anybody living within a block of Newp http: / /www.city.newport- beach. ca. us IP1nAgendas /2006/nmO8- 17- 06.htm Page 35 of 49 03/19/2007 2(Ql Planning Commission Minutes 08/17/2006 Page 36 of 49 evard is going to have noise. How you can point the finger at the Brewe say it is their fault, doesn't fly. This problem is all up and down Newpc evard and unless you come down on every bar in the City, you will still have lem. If you do it only to the Brewery you are discriminatory unless you do it ybody else. This is a great establishment and 1 would hate to see anythir happen to it, they do a great job. audience became very vocal at this point. Harp noted this is a public meeting and all rules of decorum prevail. If anyc ates those, the officers will be happy to escort you from the premises. Plez the people speak. The Planning Commissioners are not here to respond ,stions, they are the ones who get to ask the questions. imissioner McDaniel noted he has tried hard to listen to everyone, he will ig and it would be best to hear the issues, not the emotions. We have e decisions and so we ask questions to help us understand the situation to to.make a good decision. Think about what you do to help yourselves wt make your presentation. We don't want to argue with anybody or cause t )le. Help us to get through the issues. :)e Reese, noted that condition 10 states the approval of this use permit is for %staurant/brewpub and shall not be construed as the approval of a bar, cockto unge, or other use serving alcoholic beverages during hours not correspondir r regular meal hours (food products sold or served incidentally to the sale srvice of alcohol beverages shall not be deemed as constituting regular me Brvice)... I did go there on August 5th and when I went there it was with tt itention to see how it is being operated. The security guard met us at the do nd was checking ID's. We asked why he was doing that and he said that aft :00 p.m. the restaurant becomes a bar and that no one under2l is allowed in iey would lose their liquor license. The restaurant had patrons standing and lot wsic was playing. We sat at a table and asked the waiter for food who told t ie kitchen was closed and the only thing to order was drinks. There were r lips, pretzels or popcorn being served. There were three security guards insic ie restaurant and another one was outside. It was obvious that this was actir s a bar, not a restaurant. went on to say that if you look at all the paperwork, the Planning Commission City Council were specific about the operation. Referring to hand writter e 127 of the staff report, he read the testimony of the then general manager. iwn Needelman. He then spoke about the differences comparing testimony. suggested closing the restaurant at 11:00 p.m. as that is the normal closing of a restaurant and that will solve the problems. rge Schroeder, noted he was present at the meeting in 1993 when the origina iit was received. The reason they got the permit was they were going to be e pub. He was present in 1999 when they applied for their liquor license. erring to handwritten page 18, item 5, the restaurant/brewpub use i; patible with the surrounding commercial and nearby residential uses, there always been residential uses in that area. It seems to be an impression tha s the new loft condos were built behind it on one street now there it lential. There has always been residential use in the Cannery Village area. of the original staff report was that they would operate in a way that would be eable with the nearby residential uses. I don't think it reasonable this mar http: / /www.city.newport- beach. ca. us /PlnAgendas /2006 /mnO8- 17- 06.htm 03/19/2007 'L (P 2 Planning Commission Minutes 08/17/2006 )se his business. All that matters is are they complying with the permits th ave gotten, and in my opinion they are not. The solution is they should close 1:00 p.m. on Saturday and Friday nights, which should alleviate a lot of t roblems for the residents in the area. I have lived 18 years here and it is not f blame everything that is wrong on this one establishment, but we can look ie permit they have and the conditions they agreed to. There are fistfights on t treets after the bars are closed and often times I am awakened at 1 a.m. and it and to get back to sleep and it does affect your work day. This establishme hould comply with the conditions of the permit. He continued talking about oth stablishments and noted that his survey resulted in closing times of 11:30 p. le noted that this is a bar. Wetherhault, local resident, noted: . The 200 blocks of 28th, 29th and 30th Streets get pounded every with drunk activity. . A drunk has tried to break into his property. The police responded. . Fights have occurred where the police responded as well as paramedics. . Various acts of sex, property damage, vulgar language go on all times the night. . The point is these types of incidents continue to increase, as does number of people under the influence of alcohol The number of police to this area is extreme. . The residents are tired of this and if the patrons can not leave th establishments in a responsible manner and the bars can not control activity of their late night patrons, then the City needs to start laying these establishments. . This establishment went in as a restaurant and we would like to see continue as a restaurant but you need to do something to curb this activity. nmissioner McDaniel noted you mentioned a lot of things that have happened. i mentioned broken bottles but it is not normal that containers would be taker from this establishment necessarily. You haven't talked about any specifics. Wetherhault answered it is one of the impacts, it is another bar having act in the surrounding community. You can see the number of responses fr Police Department that are alcohol related. McDaniel noted this is in general for the area, not specific to He was answered, correct. Commission inquiry, Mr. Wetherhault added that there is loitering in the pa s directly adjacent to the residents and you can see them coming from Page 37 of 49 http: / /www.city.newport- beach. ca. us /PlnAgendas /2006 /mn08- 17- 06.htm 03/19/2007 ZAP 3 Planning Commission Minutes 08/17/2006 Page 38 of 49 Bransiwaski, past resident of Cannery Village, noted everyone is tall ancillary use. The relevant definition of ancillary use comes from quart ation. How much booze versus how much food is sold quarterly. You c : it down to days, hours, weekdays. You can in terms of discussion, but ant definition is quarterly. So why are people talking about what happ -en the hours of 10 and 12 p.m. or what the characteristics might be? my Shepherdson, resident since 1967 stated when his place was built there wai small gourmet market that is now the Brewery, so these things came after I wai resident. The Brewery, Malarky's and Rudy's are not sidewalk cafes. I pass the ,ewery on Sunday mornings and it appears to have a nice ambience. Wha appens late at night is when our nightmare starts. These are full on drinkinc itablishments. The drunks late at night keep him awake and from hi; arspective the village atmosphere is being destroyed in his immediate vicinity b) e Brewery, Malarky's and Rudy's. The police can not respond when thing: appen. Rudy's on Sunday afternoons has live entertainment with a live PF rstem that sounds like it is in his garage and this is around 4 -5 in the afternoon. is very difficult to take and has gotten the police involved. He asked that if the ity is pushing the mixed use and have businesses and living quarters togethe at to allow the hard liquor license, for these things 'to continue, it really isn' ping to fit. We need help to maintain the Newport Beach village atmosphere. Weeda, business and property owner in Cannery Village, noted: . It is important to seek compliance with the use permit, that is what this about. . Just because this operator has operated outside the permit for years, does not validate or legitimize the actions. . When this use permit was applied for they were promoting themselves as restaurant and one of the reasons this was done is this was an amiable we to get a permit. . If they had gone in and said they were going to operate as a boisterot nightclub at 11p.m., 12 and 1 a.m. on the weekends, they would hai virtually no chance of getting the permit. Particularly since this district has high concentration of bars and history has shown that nightclubs have n fared so well down there. . He mentioned other nightclubs in the area and stated the problems of a night venue with alcohol. . This establishment was promoted as a restaurant because they could get permit as a restaurant. Now they are operating as a restaurant most of tt time in the restaurant hours and as a full blown bar after 11 p.m. . The clear solution is to bring them into compliance and have them be restaurant they promoted themselves to be, which many of the o restaurants in the area have set a fine example by doing so. . Condition 6 - the net public area of the restaurant is limited to 1,500 http: / /www. city .newport- beach.ca.us/PlnAgendas /2006 /mnO8- 17- 06.htm 03/19/2007 Z�� Planning Commission Minutes 08/17/2006 fee daily. There is a bit of ambiguity the way this is written but we ha contacted the Coastal Commission and it has been presented that it is daily restriction and is part of the condition of the Coastal Permit. That something that needs to be regulated and enforced by the City. Condition 7 - The hours of operation Monday through Thursday are 6 to 11 p.m. and we think those should be the hours of operation on Friday anc Saturday as well to bring it into compliance with a restaurant type operation. Condition 9 - The alcohol should be ancillary and not primary and should I in conjunction with food. The operator promoted that they needed this order to make the food work, then use it for the food. After 9:00 P.M. tl most compelling testimony, 90% of the business is alcohol so that really in violation. Condition 10 - It is pretty clear that the Planning Commission and the Council did not want to promote a nightclub or bar there. Again this back to this being a restaurant. The reason for the use permit is to en things like this are being taken care of such as parking and land use. T is a serious parking problem in the neighborhood when there are promotions during play off season or super bowl. That is what the Co Commission was concerned about. Commission inquiry he noted that condition 6 needs to be enforced and doesi ad to be clarified. It is clear to me it is a daily condition that has been impose the Coastal Commission and needs to be enforced like all the conditions. N ue is not with the operation and what it does or who the people are, my issue h the use permit and being in compliance like every other business like n siness that operates under a use permit. We are in compliance and we expe eryone else to be too. That is what a use permit is for. The late night creates of the problems and I think it can be organized by making them adhere to the e permit. I think this is really an important thing and applies to late night s III. It is really about the parking and that is why that condition is imposed ar eds to be adhered to. It creates conflicts with other business owners during tt rmal business hours and creates conflicts with other public people parking s Aley, resident, noted that she frequents the brewery. She stated she t been able to get food after 12 p.m. She has not seen any of the s after 12:00 p.m. when she has been there that have been > speakers. portrayed Hogan, a manager in charge of the kitchen at the establishment, noted: He was on duty the night of August 5th when two patrons came in and they were not allowed to get food. . That night there Saturday. Even down. were 3 events in So Cal and we were the slowest on with that, there is no way I would have shut the kit( . We are supposed to be open and we are. Page 39 of 49 http: / /www. city .newport- beach.ca.us/PinAgendas /2006 /mnO8- 17- 06.htm 03/19/2007 2 (05 Planning Commission Minutes 08/17/2006 . He is one of the last ones to leave and on the weekends leaves at 1:30 or and the parking lot is silent. Whatever happens after that is out of ou control. We can lock the parking lot but we don't want to be liable and patrons need to leave their car and get a taxi, then we promote that. Then is a municipal lot in the back that can be used as well. . There were 41 calls recorded for this procedure, how many of them during our business hours? . 65% of the arrests were due to alcohol, how many of them were on the of July and do they involve us in any way? . Nobody orders food from 10 p.m. to 2 a.m. After 2:00 a.m., Jack in the is packed, there is a line wrapped around the building. Denny's is stan room only. . A crime to me sounds like a someone not reporting they are seeing a going on. Chairman Eaton asked are there times the kitchen is closed before ig time of the entire premises. Hogan answered no, the kitchen is open until the Brewery is closed. You ,r a steak at 12:15 a.m. At Commission inquiry, he noted that we can e people to order food. Once they are out they are hungry, but they c ally eat between 10:00 p.m. and 2:00 a.m. Moore, resident on the boardwalk for 30 years, noted: . He has an alley in the back of his home and he chose to live on boardwalk. . Drunks come down that alley every night. . They are there because there are a lot of bars in the area, not just of the Brewery. . He has been a patron of the Brewery and has eaten there after 11:00 p.m. . He has never seen any problems in the parking lot. Low, local resident, noted: . Referenced the work done by staff and the time put in by the Commission. . He presented a packet of communications, which had been distributed the Commissioners in their packets. . He presented copies of a CD of the May hearing. . There have been a lot of points of view of what people have seen or http: / /www.city.newport- beach. ca. us /PlnAgendas /2006 /mn08- 17- 06.htm Page 40 of 49 03/19/2007 2 G iQ Planning Commission Minutes 08/17/2006 seen. The issues that are in the communication that went to the City, I h heard no substantial testimony that proves any of the communications inaccurate. I submit that the complaints by the residents are what they and are part of the record. We are talking about compatibility. We understand we live in a mixed use neighborhood and understand what that is. When we look to find equity o' rights in that mixed use neighborhood, that is what we are talking about. Not whether they are good or bad, what's fair, what's right, what': appropriate, what isn't appropriate. That is why we ask you and we entrus upon you to make wise decisions on how to deal with our neighborhood. Chairman Eaton asked: . Are you associated with the Cannery Village Concerned group? . How big is that group and how wide an area do they live in? . Are they primarily residents? . Do you see any relationship between condition 6 and the late nig nuisance problem or is that a case of the parking problem in the village as whole? Low answered yes, he is a member. It is not so much as a forma mbership but that group probably has 50-60 persons that are involved and wt 80% of those are inside the Cannery Village. There are a few who live or periphery of Cannery Village but they may be on the other side of Newpor .ilevard. Certainly it is dominated by folks who live or own property in thr nnery Village. Specifically condition 6, as dictated by the Coastal Commission s to free up parking during the day because they determined that the deman( parking occurred during the hours of 8 a.m. to 6 p.m. They felt that after 6 p.m )pie leave who may have been working there or go home from the beach am re is more parking there. Condition 6 does not address evening issues, I thin) t the Coastal Commission was trying to make it available to the Brewery in thf ,nings or other businesses or persons who use it in the evenings. There was rflict during the day when other persons were attempting to utilize that limiter missioner McDaniel noted that the information that comes from this n't always get signed. I have a problem when people send correspo no signature, it doesn't' have a lot of credibility without the signatures. don't stand up and to be counted, I don't care. Low noted that everyone in that group are willing to be disclosed. Madlock, Vice President of Newport Beach Brewing Company since ion, noted: . The Type 75 license was not in existence when we first opened the brem and asked for the conditional use permit. What was allowable was just Type 22 which was a small beer manufacturer's license. The Type 75 cE Page 41 of 49 http: / /www.city.newport- beach. ca. us /PlnAgendas /2006 /mnO8- 17- 06.htm 03/19/2007 Z -0 Planning Commission Minutes 08/17/2006 Page 42 of 49 along later due to the fact that there was some old laws prohibiting brev beer on the same premises where you could buy hard alcohol. It was available or we would have asked for it at the beginning. The parking issue and closing off part of the restaurant, it was understanding that during the weekdays we left 13 spots for the of spaces above the brewery. We were under the impression that beca the offices were closed on the weekends, that was the reason why Coastal Commission was not pushing us on having any area closed during the weekends. immissioner McDaniel, referring to the August 5th City Council minutes, it wa ted that the Councilmembers clarified that this Type 75 license application wa be able to provide for your eating customers. The ancillary thing keeps comin here. When I read these minutes, it appears to me you asked for this becaus ur customers are sophisticated and don't want to drink just a beer they ma int to have a cocktail and you were trying to increase your sale of food. Am ona in that? Madlock answered we wanted all higher sales. Of course we want to food. We find that many customers that we had prior to getting the hot license were not frequenting our establishment. We were told that n )le wanted martinis, margaritas, etc. Not all people want to order wine and that was the basis of why we went in for the Type 75 license. nmissioner McDaniel noted that it was stated that 'they wanted to complen it enhanced food, wine and special menu, and capture a more diverse clien acquiring this license. I read this so that you wanted to increase your f as and sell them a margarita too, but you wanted this license to assist with d sale. Ancillary keeps coming up and we don't want you to be a bar, we v i to be a restaurant that serves drinks. Madlock noted we have never served a cover charge and we wanted to icholas Wilson, resident, noted that the testimony of most of the speakers ,ems the biggest problem is the parking lot. The majority of the compla mcerns noise and the parking lot. It is clearly unfair to single out one restaura r the problems in that parking lot considering that is the largest public parking I a proximity to seven restaurants within a two block radius. There is a shortal restaurants that do serve late in the evenings. There are those of us who )t work 9 - 5 and we appreciate being able to get a beer and something to eat non - regular eating hour. Huffine, resident of Costa, noted her support of the restaurant noting this extended family and as a regular patron have seen the efforts put forth by tl ers to be good neighbors. comment was closed. ssioner Henn referred to the Coastal Commission findings of 1993. 3e regarding how much of the restaurant is to be open during what d to be clear and consistent with the motivations with what I know to be http: / /www. city .newport- beach.ca.us/PlnAgendas /2006 /mn08- 17- 06.htm 03/19/2007 2 (09 Planning Commission Minutes 08/17/2006 astal Commission. There is no wording whatsoever about daily, it says, shal open before 5:00 p.m. (referring to the 1500 foot restriction). Doesn't say daily asn't say Monday through Friday. I don't know how the City could interpret thi<. say Monday through Friday when the permit was issued. As far as I arr icerned that is clear to me. Toerge noted his agreement with Commissioner Henn. Chairman Eaton noted his agreement also. He added that the de riction does as well (referring to handwritten 86). It says daily. With regard comment on the 13 spaces on the upper floor, hand written page 63 the st rrt from the Coastal Commission notes that there are 43 spaces provid ring the day with the restriction and that provides for the 13 on the sec or. I don't think that related to not having the weekday restriction at all. If ndition needs to be clarified my recommendation is to remove the refer( )nday through Friday reference. missioner McDaniel noted that he agrees. Commission was in agreement. McDaniel noted: . He has had to ask a lot of questions as the Commission handles zoning blood, vomit and fights. . The ancillary issue is clear and that the request for this Type 75 license fo alcohol was made so that the restaurant to better serve its restauran customers. . The Planning Commission and the City Council made it clear that this supposed to be a restaurant and I believe it was given to better help place service its customers for food. . There has been testimony from people who work there saying between and 1 a.m. 90% of what goes on there is not food, it is alcohol; I can't mo them eat, I'm okay with that, but the purpose of this condition and apprc was so those people who did want to eat could have alcohol, not so t you could just serve alcohol. . Another employee said nobody eats between 11 and 2 a.m., Denny's isr busy, they eat after that. So this condition is not being served by this and is a bar between those hours as people .don't eat there by their off admission and they are saying food is not served because you can't mat people eat. . They are not serving food, they are serving alcohol so I think there is violation of that portion of the use permit. . Clearly the daily issue we just talked about. . Nuisances - we have tried to pin down where those are coming from. http: / /wwv. city. newport- beach. ca .us /PlnAgendas/2006 /mnO8- 17 -06. him Page 43 of 49 03/19/2007 2 G? Planning Commission Minutes 08/17/2006 Clearly they are not all coming from this place and so what do we do from zoning issue to try help solve that? That becomes more difficult for me. We can ask the operator to assist by covering the trash and they are to about doing that because they want to be a good neighbor. I'd like to at giving the owners some opportunity to fix these issues before we any significant changes to this. I am not sure if it matters to me if they serve alcohol or not as long as are doing it in a manner where it doesn't cause public safety is because that is what I have to talk about. My view is to get some consensus how the operator voluntarily take care some of these issues. Maybe call this back in 6 months for a review and they are not operating responsibility than anything that they do after 11 p.r is not a restaurant and we should deal with it then. issioner Henn, noted: Condition 10 - it seems this language was uniquely constructed. standard language for the provision of a hard liquor license establishment that is primarily be a restaurant? r. Campbell answered this language was uniquely crafted at that time. We do milar condition today, in essence to define what the use is and what the use c A be. One of the issues we are struggling with this condition is staff has look( these conditions and balanced the use based upon the entirety of the us hich is restaurant a majority of the time and a bar as a minority of the time ar incipally it is a restaurant. Based upon that and that past practice is why v ruggle with does this condition prohibit the bar after 11:00 p.m., and the answ we haven't looked at it in that light until now. 1r. Harp added that in talking with City Attorney Clauson, the intent was for this perate as a restaurant but serve alcohol and not as a bar. Looking at t rnguage in condition 10 its says food products sold or served to the & icidentally to the sale or service of alcohol beverages shall not be deemed onstituting regular meal service. It seems to me that provision is pretty clear a don't see any ambiguity some others see. Toerge noted: This situation is broken. You don't get the kind of resident appeal that are getting tonight if something is not broken. The Planning Commission is going to have to get use to these kinds discussion as more and more properties are zoned mixed use, although we do that we will probably get better about applying conditions. . There is a real conflict in these conditions because I do read condition that the serving of alcohol is to be done in correspondence with regr meal service hours. I've testimony about doctors and others who like to late and I understand that, but that is not regular meal service hours a Page 44 of 49 http: / /www. city .newport- beach.ca.us/P]nAgendas /2006 /mn08- 17- 06.htm 03/19/2007 0 70 Planning Commission Minutes 08/17/2006 that is what we are talking about. What are those? I don't know, bu are not at midnight or at 11 p.m. or 1 a.m., that is not in my opinion. l very clear to me. We can debate the issue of ancillary as this Comm has in the past reviewed a number of applications for alcoholic bev service ancillary with food and I don't know of any of them that are past 9:30 or 10:00 that we have approved where an establishment want to serve beer or wine or even a cocktail with their food. What I don't understand is how our predecessors could have allowed property to be open with this condition that alcoholic beverage could served with regular meal service hours. Harp noted when he had spoken with Ms. Clauson regarding this issue, hi Aanation based on her recollection was that the intent of the operation was like Charlie's Chili or some of the other places that do serve food late at nig i the intent was to have a meal and also have alcohol with it. When they g amended permit the minutes stated that the clientele shifted from people it twenties to people in their sixties. It is consistent with people coming in for al and having a drink with their meal. immissioner Toerge stated that merging conditions 9 and 10 the ani rvice of alcohol with food it makes it more clear. I definitely think an ame this use permit is due and we owe it to the residents. This issue came b in May and the issue is still here; there seems little done to address the is d from my standpoint I think the ours of operation should be reduced and t sure 11:00 p.m. is the right one but I know no later is the right one if they continue to serve alcohol with food. I will be recommending revocation u s owner wants to agree to some other conditions. missioner McDaniel asked about a 6 month time line. missioner Toerge answered no. Harp stated they had met with the Newport Brewery counsel as well as t nagement directly after the last Planning Commission meeting. Basically phasis at that meeting was come up with a way to get control of your busir the interim, implement those procedures and come back to the Plam mmission with a plan. They haven't seem to really have done much in the � days, so that is something to take into consideration. issioner Peotter asked about exhibit 5 1 by Newport Beach Brewing Company or is this something that they would do? that is the additional co Have they implemented Campbell noted the security guards are there but there has been no secur presented. The bottle recycling program has not been implemented, tl I dumpster area I have been told they are exploring the concept; the alcW ling I have been told that is being done, but there is no proof to date; nE ance, upon tonight's testimony it hasn't been implemented and the tow up e is something they are considering; and the back page is a suggestion ige condition 9 and 10. No particular other improvements have been made. Henn noted he is not interested in waiting another 6 months to Page 45 of 49 http: / /www.city.newport- beach. ca .us /PlnAgendas /2006 /mnO8- 17- 06.htm 03/19/2007 2 7 1 Planning Commission Minutes 08/17/2006 Page 46 of 49 there is voluntary improvements. If people want us to make the decision, I a ad to do that. I suggest to continue this for one month to allow time for tl ]grieved parties and the owners of the business to sit down and hammer out )lution that they can live with. I prefer not to make the decision, I prefer tl arties to come to some decisions. They might have tried that and failed and iat is the case, I am glad to make the decision as part of the Commission. )mmissioner Peotter noted that sitting across the table is not going to do much there appears to have been a lot of months of bad blood. I would be requiring =m to implement what the have said in exhibit 5 within the next 30 days. We n give them 60 days with the implementation and then sit down with the (grieved parties if it is working or not. Otherwise, chop their hours and be done th it. )mmissioner Henn noted exhibit 5 doesn't go far enough. )mmissioner Peotter noted we can add to it such as an no age restriction, etc. scussion followed on some additional implementation procedures. ce Chairman Eaton noted we should not try and do something tonight or at the :xt meeting because the Our Lady Queen of Angels will be at the next meeting. 3 agrees to a continuance for a month. Both sides and city staff should meet to e what agreement there can be in terms of meaningful improvements but for the aff to come back to the Commission and present us with what we can do in Ddifying conditions then have a review in 6 months to see how those modified inditions are working. The other reason not continue the whole thing for 6 Dnths is that either side may be anxious to get this up to City Council and we ould not stall them for that period of time. During this month we need to xtcture some revisions to the conditions that we might have a shot at working for a neighborhood. Cutting back the hours is the drastic solution that we would pe to avoid. I would like to have staff look at the certification programs have a mponent that provide guidance to employees when to stop serving to iividuals when they have become too drunk for their own good. If it does, how n we get verification that the employees have gone through this training and n we get some assurance from managerial employees that they have instructed air staff to implement that. The ultimate problem seems to be outside the smises. The problem inside the premises they are containing and the neighbors e not as affected. Some of the behavior outside the premises is probably not ,ming from the patrons of this premise unless they are going on to other bars icause at 2:00 a.m., I am sure patrons of this establishment are probably gone. is a neighborhood problem of which this establishment may be contributing a irtion and I would like to see if there is a way to get something back to us in a :)nth that will offer some revised conditions including specifically condition 6 and - mething specifically stating the kitchen shall remain open the entire time and a 3y to get the employee alcohol training implemented. Craig Frizzell, Detective Division Commander of the Newport Beach Police >artment, noted that there are several types of training programs. I know the ping but I don't know if there is any type of certification, but we can find out. can work this out with the owner within a month's time. imissioner Henn noted that the neighborhood groups need to be inv ng this time. He noted that the people who own and operate this resta not mal- intent. I think they are trying to operate a good business. 1 also http: / /www.city.newport- beach. ca. us /PlnAgendas/2006 /mn08- 17- 06.htm 03/19/2007 Z 2 Planning Commission Minutes 08/17/2006 Page 47 of 49 nk that the neighbors that are aggrieved are blowing up their claims routine re to make it seem much worse than it is, I don't believe that either. In fact, ally don't care as our function is not to find out who is telling the truth and who aggerating; our function is to try and find out what the use permit is and wheth( a restaurant is being operated in accordance with that and therefore whether th ink people in the parking lot are patrons of this restaurant isn't the importai oue. The important issue is what is the use permit and is it being operate rrectly in accordance with it. I want to make sure that everyone understanc at this is an objective decision before us. The testimony tonight is not german the decision. Harp noted that on the motion it needs to be clarified as to the manner t this to come back to you as there are different procedures for modific, revocation. Chairman Eaton noted he is talking about a modification, not a nissioner Toerge noted he does not want to take revocation off the table, the owners act. He prefers to continue the hearing and keep the opti r. Harp noted that revocation is not on the table but if you want to add it, staff aed to comply with the procedures set forth for revocation. By opening up )or for revocation, does not mean you have to take that action. We can comt with modification, additional terms and revocation. nmissioner Toerge noted he is not prepared to make a motion to revoke tl ise today, but he might be next time. It is an option we have and it should I ntained and it should be there. This is a serious issue and we need ntain that option as I think it will motivate the parties to reach the resolution. not sure we will get there if revocation is not an option. imissioner Peotter clarified that you are suggesting that this item be contin brought back with revised conditions that are hammered out by staff who had input by the neighbors and the owners. missioner Toerge noted his agreement; however, the meeting should I: :ed in such a way that if the information we get at that meeting compels one c a of us to revoke it that we have the opportunity to make that motion. Wh; are saying is the right tact, but it presupposes that there is going to be sour promise and I am not convinced there is. If there is no compromise then to revoke. ing a brief discussion it was decided that revocation should also be on for the next meeting. Aion was made by Commissioner Toerge to continue this item to st and ask that the item be noticed in such a way that we have the engage in further discussion to make modifications to the use pe joke the amended use permit that granted them the right for this :ohol sales on the premises. http: / /www.ciiy.newport- beach. ca. us /PlnAgendas /2006/mn08- 17- 06.htm 03/19/2007 Z 7 3 Planning Commission Minutes 08/17/2006 Harp affirmed the Commission wanted staff to prepare potential or additional conditions. Chairman Eaton agreed and added that there was consensus that Jay provision be removed from condition 6. maker of the motion agreed to add that to the motion. issioner Henn noted that the neighborhood people should not take this blanche to be intransigent and unwilling to discuss and unwilling Dmise on their positions either. What the Commission is looking for is Dmise and I think that is included on all parties. Page 48 of 49 yes: Peotter, Eaton, McDaniel, Toerge and Henn Noes: None bsent: Cole Recused: Hawkins City Council Follow -up - Ms. Wood noted that the agenda for August was the City Council initiated an amendment to the Planned Community Icourt to prohibit additional subdivisions, which will be coming to PMkping Commission. Report froTk Planning Commission's representative to the Econon Development ommittee - Commissioner Henn noted the topic discussion was t cost related to Greenlight 11. EDC will be recommendi to the Council a rev d summary of the associated costs. C. Report from the Planning Co ission's representative to the Local Coast Committee- Commissioner To a noted at the meeting of August 14th tl approach in terms of the volu of the information included in tl Implementation Plan were discusse . We decided we needed a summa of how the items serve each of the poli s in the Local Coastal Plan itsel We discussed the topic of the Corona del r bluff development guideline which is significantly different than other blu the City. Matters which a Planning Commissioner would like ff to report on at subsequent meeting - Vice Chairman Eaton asked wh the topic of tl rules and procedures of the Planning Commission will be u or review ai whether the Zoning Committee will be reactivated. Ms. Wo noted th staff is working on the rules and procedures and that the Zoning mmitt� may be reactivated when the General Plan is approved. e. Matters which a Planning Commissioner may wish to place on a agenda for action and staff report - none. http: / /www.city.newport- beach .ca.us /P]nAgendas /2006 /mn08- 17- 06.htm 03/19/2007 1 %q BLANK BLANK Z75 Item 6 terials submitted to the Planning Commission for consideration 2-7(a 1 BLANK Z77 M>< Es • LAw GROUP A PROFESSIONAL CORIK)RATION 9911 IRVINE CENTER DRIVE, SUITE 150 IRVINE, CAMFORNIA 92618 (949) 788 -1425 FAx: (949) 788 -1991 SMII.F.S@MILEsLAwGkoijp.com LAND USE • ENVIRONMENT. ENTITLEMENT FOR INCLUSION IN TIIEADMINISTRATIVE RECORD OFPROCEEDING MEMORANDUM TO: CHAIRMAN COLE HONORABLE MEMERS OF THE PLANNING COMMISSION MR. JAMES CAMPBELL, ASSISTANT PLANNING DIRECTOR MR. AARON HARP, ASSISTANT CITY ATTORNEY FROM: STEPHEN M. MILES MILES • LAW GROUP, P.C. RE: NEWPORT BEACH BREWING COMPANY USE PERMIT AND OPERATIONS REVIEW DATE: JANUARY 4, 2007 I. INTRODUCTION AND SUMMARY For approximately eleven months, staff and the Newport Beach Planning Commmission have been reviewing both the operations of the Newport Beach Brewing Company C NBBC ") and various permit conditions held by NBBC to operate a restaurant and brewpub. Two previous public hearings have been held by the Planning Commission. First, on May 4, 2006, the Planning Commission held an informational hearing on NBBC's Use Permit No. 3485 (the "Use Permit ") following certain complaints to the City of Newport Beach about NBBC. Next, on August 17, 2006, a review of the Use Permit was conducted and extensive testimony was heard about the concentration of bars in the area and various residential concerns with late night pedestrian activity in the area.. 27,? Chairman Cole January 4, 2007 Page 2 In addition to the Use Y'ermit, NBBC holds Coastal Development Permit No. 5 -93 -137 ( "CDP Permit ") and both 'a Type 23 and Type 75 Alcoholic Beverage Control license. The Type 75 license permits the sale ofwine, beer, and distilled spirits associated with the restaurant and brewpub. In 1999, the City Council amended the Use Permit to allow operation with a Type 75 license and specifically reduced the Restaurant and Brewpub hours of operation for Sunday through Thursday (reduced from 11:30 p.m. to 11:00 p.m.). The lion's share of the Use Permit conditions remained unaffected from the original approval by the City Council in 1993. The initial complaint and complainant that commenced the review of the Use Permit has received little review or scrutiny during.these proceedings. Testimony from Officer Cosylion and Commissioner McDaniel indicates that a January complaint letter from "residents of Cannery Village" resulted in the February 2006 Code Enforcement investigation of NBBC. (See, 8/17 Minutes, pp. 23 -24.)] While the Code Enforcement investigation found no actionable violation of the Use Permit, voluntary measures have been undertaken by NBBC (including outreach to the residents of the Cannery Village), in an effort to improve theiroperations in a neighborly manner. NBBC is also pleased to note that they have reached consensus with City staff on a set of additional and modified conditions to the Use Permit after several months of hard work with staff. NBBC reviewed proposed conditions, provided commentary to City staff, met with City Planning on several occasions, and also met with Mr. Low to confirm that he had no remaining complaints about NBBC's operations. That NBBC's voluntary efforts (1) addressed the concerns raised by "nearby residents, property owners and local . business owners" (Sta' Report, p. 1.) and (2) verified NBBC's compliance with Use Permit conditions, was ultimately confirmed by the November 3, 2006, Investigative Report conducted by the City ofNewport Beach Police Department ( "Investigative Report"). A copy of the Investigative Report is attached hereto and incorporated herein by this reference. While NBBC will always remain cognizant of legitimate concerns Iodged by its neighbors and will continue to improve its operations in a successful manner, NBBC questions the veracity of the initial complaint lodged with the City that commenced these proceedings. While specific residents of the Cannery Village will certainlyhave legitimate concerns with noise emanating from the vicinity of the NBBC parking lot and the adjacent municipal parking lot, NBBC believes that the opposition led by the Cannery Village Concerned was equally motivated by financial interests. Mr. Kevin Weeda and Mr. Bruce Low have held themselves out as the leaders of the `.` CannenyVillage Concerned" — and allegedly represent upwards of fifty Cannery Village residents. To date, no evidence has been provided to this Commission that verifies the existence of a bona fid$ association or the actual residents that Mssrs. Weeda and Low actually represent. Mr. Weeda, who has testified on several occasions about the NBBC Use Permit, has a distinct pecuniary interest in seeing NBBC's operations fail. On several occasions over the past two years, Mr. Weeda has approached the owners of the NBBC property (Fainbarg and Feuerstein) seeking to acquire the parcel. (See, Declaration of Mr. Irving Chase). Fainbarg and Feuerstein previously owned various properties in Cannery Village before selling them to Mr. Weeda. (1d.) Despite his persistent inquiries, the owners of the NBBC property have informed him that the NBBC parcel is subject to a long term lease and is not for sale. (1d.) 271 Chairman Cole — January 4, 2007 Page 3 H. VOLUNTARY ACTIONS TAKEN AND IMPLEMENTED BY . THE NEWPORT BEACH BREWING COMPANY In light of the direction given by this Commission on August 17, 2006, and because NBBC takes great pride in being apart of the Newport Beach community, several voluntary actions have been taken byNBBC to continue the improvement of its restaurant and brewpub operations. I. Line Relocation. hi coordination with the City, NBBC has administered a new entrance from the front of the building that eliminates any queuing and loitering in the NBBC parking lot. As observed by the Investigative Report, the new entrance successfully eliminates noise that may otherwise be detected by the Cannery Village residents that purchase lofts directly adjacent to the NBBC .parking lot. II. Security Plan and Security Guard Presence. Employment of up to S Security Guards with a primary function of controlling and patrolling the NBBC parking area until 30 minutes after closing. The specific duties currently undertaken by NBBC Security Guards will be memorialized in a Security Plan that will be presented to the City and the Police Department. Key' elements of the NBBC Security Plan include: a. Noise abatement through notification of patrons. b. Implementation of LEADs concepts — identification review to eliminate risk of underage drinking. c. Parking area enforcement of noise restrictions and nuisance activity; documentation of noise issues and nuisance activity from the municipal parking lot and ancillary public areas (streets and alleys). d. Response to Cannery Village complaints and concerns and coordination with the Newport Beach Police Department. 4 III. Bottle Recycling Program. NBBC has implemented a bottle recycling program that collects bottles inside the restaurant to eliminate noise. Also, the use oflarge, deliverable storage containers eliminates the "dumping" of glass and its associated noise. IV. Trash Dumpster Area. NBBC submitted architectural design plans to the City for an enclosed and covered trash dumpster area. The enclosure will be locked and secure. V. Alcohol Training. All NBBC owners, operators, and employees.have successfully completed a State certified LEADS program and will require all future employees to complete the LEAD'S program. NBBC also remains active with the City.of Newport Beach Police Department and attended the business program hosted last month that focused on the prevention of underage drinking. 2YO Chairman Cole January 4, 2007 Page 4 .III. MODIFICATION AND REVOCATION OF USE .PERMITS NBBC is confident that the Commission will recognize the voluntary efforts undertaken byNBBC and, taken in conjunction with the conclusions of the Investigative Report, will conclude that the draft Use Permit conditions proposed by City staff are well - reasoned and effective in addressing legitimate concerns raised during these proceedings. NBBC is in agreement with the draft Use Permit conditions finalized by City staff on December 26, 2006. However, NBBC's legal position remains that no present conditions exist that warrant modification or revocation of the Use Permit. Substantial evidence in the record and the City's evidentiary findings in adopting the Cannery Village Specific Plan indicate that NBBC's preexisting operations are consistent with. the surrounding land uses and that no nuisance conditions exist. The investigative reports conducted by the City and under the City's direction confirm that no extraordinary incident or complaint is associated withNBBC and that it is operating with fewer incidences than other similarly-situated establishments. Moreover, the evidence presented by the City confirms that NBBC remains in substantial compliance with the Use Permit conditions. Furthermore, the majority of testimony presented on August 17, 2006, confirms that a heavy concentration of bars exist in the vicinity of the Restaurant and Brewpub. These establishments close later than NBBC and the patrons of these bars utilize the municipal parking lot within the Cannery Village. In an effort to rectify the issues emanating from the municipal parking lot, the NBBC Security Plan mandates that security personnel remain on the clock for 30 minutes beyond closing to monitor both the NBBC parking lot and adjacent municipal lot, alleys and sidewalks to address pedestrian activities that maybe disruptive to the Cannery Village. (See, Declaration of JerryKolbly.) The Security Plan also allows NBBC to properly address impacts to the Restaurant and Brewpub and surrounding Cannery Village caused by the residents of the Cannery Village. (Id. [Attendees of Cannery Village party utilizing and littering NBBC's parking lot].) A. Goat Hill Tavern The seminal decision on revocation and modification of use permits is Goat Hil(Tavern OVity of Costa Mesa (1992) 6 Cal.App.4th 1519. Like the case at hand, the Goat Hill Tavern Decision involved complaints from residents abutting the parking lot of the bar about noise, trash, and drunken behavior during late hours of operation. (Id. at 1524.) In contrast to the evidence before the Planning Commission, however, the City. of Costa Mesa provided extensive evidence through a staff report that "summarized 19 reported police incidents occurring at the tavern between August 1990 and November 1990. They included incidents in the parking lot and complaints the tavern exceeded its capacity and its patrons were drunk in public." (Id. at 1524 -25.) Notwithstanding the large number of incidents over a four month period, the City of Costa Mesa's preliminary action of limiting the tavern's hours of operation was stayed by the trial court and ultimately the Court of Appeal affirmed the trial court's grant of a writ of mandate against the City. (Id. at 1523, 1532.) 26 / Chairman Cole January 4, 2007 Page 5 The Court of Appeal held that a use permit, once issued, becomes a fundamental vested right that cannot be impaired absent a showing of either a failure by the permittee to comply with the reasonable conditions of the permit or a compelling public necessity. (Id. at 1530.) "Once a use permit has been properly issued the power of a municipality to revoke it is limited. Of course, if.the permittee does nothing beyond obtaining the permit it may revoked. Where a permit has been properly obtained and in reliance thereon the permittee has incurred material expense, he acquires a vested property right to the protection of which he is entitled." (Id.) Because the Use Permit is a fundamental vested right held by NBBC, an administrative decision that substantially affects that fundamental vested right is reviewed under the independent judgment standard. Different than the traditionally deferent standard of review for most land use decisions, "the trial court must exercise its independent judgment on the evidence and find an abuse of discretion if the findings are not supported by the weight of the evidence." (Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.AppAth 1519, 1531, citing Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; See Cal. Code Civ. Proc. §. 1094.5, subd. (c).) The grant of the writ of mandate against the City of Costa Mesa was largely based on the type of evidence presented at hearing: 1) Several witnesses wrote or testified favorably to Goat Hill Tavern. 2) Police records showing the number of incidents reported at the tavern were less than at most other bars and coffee shops in the vicinity. 3) No showing to, distinguish complaints about Goat Hill Tavern from other possible causes, including other bars and other pedestrians that frequented the area. While the City of Costa Mesa was unsuccessful in substantially modifying the tavern's use permit and unsuccessful in revoking the use permit, the evidence presented by the City of Costa Mesa is far more compelling that the evidence at hand. There, nineteen reported police incidents occurring at the tavern in a four month period was insufficient evidence to impair a vested right. Here, no police incidents are attributable to NBBC. (See, Investigative Report attached hereto.) Also, the evidence presented to the Planning Commission has the similar error in failing to distinguish complaints about NBBC from other possible clauses like patrons of bars in the area that close after NBBC, other patrons that use the NBBC parking lot or municipal parking lot, or pedestrians passing through the parking lots in a mixed use community. Based on the holding and evidence presented in the Goat Hill Tavern Decision, the City has insufficient grounds to modify the conditions of the Use Permit, Nevertheless, NBBC has voluntarily conceded to several new conditions and condition modifications in an effort to improve its operations and for the betterment of the community. B. Condition No. 6 While no modification is being proposed to Condition No. 6, NBBC believes that the following analysis of Condition No. 6 is warranted. While NBBC has complied with Condition No. 6 without incident since its inception, the Planning Commission is now responding to a recent allegation that Condition No. 6 may be in (v Chairman Cole January 4, 2007 Page 6 conflict with Special Condition No. 1 of the Coastal Development Permit. Condition No. 6 is not in conflict with Special Condition No. 1 or the recorded Deed Restriction that memorializes Special Condition No. 1. Since July 1993, Use Permit Condition No. 6 has stated that: "The net public area of the restaurant/brewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 p.m.), shall be limited to 1,500 square feet. The balance of the net public area shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m. daily. " Condition No. 6 clearly states that the 1,500 square feet restriction applies Monday through Friday. In contrast, Coastal Development Permit No. 5 -93 -137 (granted on July 15, 1993) (the "CDP ") is more generalized, less specific, and does not specify which days the public area use restriction is applicable. Special Condition No. 1 provides instead that: "Prior to issuance of the Coastal Development Permit, the applicant shall execute and record a deed restriction, in a [form] and content acceptable to the Executive director, which shall provide that no more than 1,500 square feet of service area of the subject restaurant/brewpub shall be open before 5:00 p.m. The document shall run with the land, binding all successors and assigns, and shall be recorded free of prior liens." A deed restriction parroting the CDP language was recorded on January 19, 1994 (Doc. #94- 0038769 dated January 19, 1994, as required by CDP Special Condition No. 1. Additionally, Special Condition No: 3 to the CDP expressly states that the City of Newport Beach shall submit a letter to the Executive Director of the Coastal Commission that indicates the City's enforcement of Special Condition 1. Like the recording of the Deed Restriction, this prerequisite explains that: "Additionally, prior to issuance of the Coastal Development Permit, the applicant shall submit, for the review and approval ofthe Executive Direftr, a letter from the City of Newport Beach indicating that the City agrees that the City's Code Enforcement will enforce the [public/service area restrictions described in [special] Condition 1." This is a highly personalized. Special Condition that exclusively relates to an express provision that the City's Code Enforcement will enforce the public service area restrictions. The Coastal Commission deferred enforcement of Special Condition No. 1 to the City of Newport Beach, further indicating that the City's Use, Permit Condition No. 6 is controlling — especially when the issue is merely one of interpretation thirteen (13) years after the fact. The Coastal Commission acquiesced to the City's specific language regarding the service area restrictions upon their receipt on October 13, 1993, of the Special Condition No. 3 Letter from the City of Newport Beach. (See, Stanson v. San Diego Coast Regional Com. (1980) 101 Cal.App.3d 38, 50.) That letter, starts by saying: Z8 3 Chairman Cole January.4, 2007 Page 7 "As requested in the special conditions for the subject Coastal Permit Application, this letter is provided for the purpose of confirming the action of the City Council of the City of Newport Beach relative to its approval of Use Permit No. 3485 (Revised) ... In summary, the City Council's action as it relates to the Coastal Commission's Special Conditions, included the following: The "net public area" of the restaurantlbrewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 p.m.) shall be limited to 1,500 sq.ft. The balance of the "net public area" shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m. daily." The letter continues by noting that the property shall pay for 29 in -lieu parking spaces in the Cannery Village Municipal Parking Lot on an annual basis for the nighttime operation (after 5:00 p.m.). In conclusion, the letter confirms that disclosed conditions have been established as conditions of Use Permit No. 3485 and that the City will enforce said conditions in accordance with Chapter 20.80 of the Municipal Code. 'A full copy of the October 13, 1993 is attached hereto and incorporated by this reference. As a final note, because Mr. Low has claimed that "the Coastal Commission has indicated that the restriction applies daily," this Commission should be aware that the CDP also includes the following standard condition that governs the interpretation of Special Condition No. 1: "Interpretation. Any question of intent or interpretation of any condition will be resolved by the Executive Director or the.Commission." Accordingly, it is not appropriate for a non -party to the CDP to propose a creative interpretation that results in a conflict and then suggest that the permittee must seek a CDP modification. Instead, if a question of interpretation of a CDP condition arises (i.e., over the past thirteen years), the Executive Director can resolve the question administratively. In light of the October 13, I993, letter received by the Coastal Commission in compliance with Special Condition No. 3, it makes perfect sense that the Executive Director has not weighed in on this "issue" or otherwise sought to bring it to the attention of the Coastal Commission. p Condition No. 6 should not be modified to reflect a restriction on weekends. Condition No. 6 clearly applies the use area restriction to weekdays. Moreover, with the other, Use Permit modifications in place Condition No. 6 is not a potential source of a community impact and hasn't been alleged as the source of a residential impact. Now that previous allegations have been addressed, Mr. Low has made the asserted that the 1,500 square feet restriction is a "huge problem." In 1993, the City clearly informed the Coastal Commission in writing that the 1,500 square feet restriction applies Monday through Friday and would be so enforced. Only the Executive Director has the present authority to interpret Special Condition No. 1. To the extent that such an interpretation is needed, it is unlikely that after 13 years the Executive Director would find Condition No. 6 inconsistent with Special Condition No. 1 and Special Condition No. 3. . Zy ATTACHMENT "1" 095 CITY OF NEWPORT BEACH POLICE DEPARTMENT November 3, 2006 TO: Sgt. R. Vallercamp FROM: Detective D. Stark SUBJECT: INVESTIGATIVE REPORT - NEWPORT BEACH BREWING COMPANY Case Initiation: On 8/22/06, Assistant; City Attorney Aaron Harp asked NBPD to assist his office and the Planning Commission in regards to the Newport Beach Brewing Company (hereinafter referred to as NBBC. Mr. Harp identified nine different questions regarding the NBBC abiding by their Conditional Use Permit (CUP) and asked the Police Department to investigate. Investigative Results: The Special Investigations Unit of the NBPD reviewed Patrol related calls tiom the CAD System and coordinated with Patrol Officers and shift supervisors to increase their awareness and the need for documentation of incidents that involve the NBBC. There have not been any Patrol re lated problems noted in the last two months. Most Patrol Officers commented that the NBBC is rarely a problem. Undercover detectives from Special Investigations visited the NBBC and conducted surveillances of the surrounding am on six separate occasions to help answer the following questions. 0 Questions 1 - 9: Question #1 dealt with the possibility of the NBBC being operated as it bar (rather than a restaurant) on specific days and at specific times, especially between 2200 hours and 0100 hours on Friday and Saturday Alights. The answer to this is very subjective and probably inconclusive. The NBBC did have on- duty security employees working. Security employees were present the entire time during each evening visit by Detectives (8- 31 -06, 9 -1 -06, 9 -2 -06, 9 -3 -06, 9 -8-06) One security employee was monitoring the entrance and one or two others were circulating throughout the restaurant. On 9/8/06, we had a Police Cadet who was 20 years old attempt to enter by herself after 2200 2kb hours. When the door security employee learned she was under 21, he apologized and said, "We don't let anyone under 21 inside after 2200 hours unless you"re with a parent or other adult." The staff kept the crowd /occupancy at a reasonable level. Even after waiting in line to enter (after 2300 hours on a Friday night), we found several tables available to sit at. They served their full menu (appetizers and entmes) until they closed at midnight. They did not have live entertainment, DYs or dancing. Question #2 inquired about the noise being generated by the restaurant. Investigating officers observed the entire exterior perimeter of the restaurant throughout the evening and night on five separate dates (Thursday, 8131/06, Friday, 9/1/06, Saturday, 9/2106, Sunday, 9/3/06, and Friday, 9/8/06). The only noise cane from the patio area which bordered Newport Boulevard. The noise was from patrons talking (not from amplified music). The noise would be drowned out when multiple can passed the location. The rear or bay side of the NBBC remained quiet and trouble free during the restaurant's hours of operation. The only door that remained open was the patio door which faced Newport Boulevard. All windows were kept closed and on one occasion (9/2/06 at about 2200 hours), when a patron opened the window, the security staff immediately responded and closed the window. The rear (bay side) doors, when being used as the entranoelexit, were kept closed except during ingross/egress of patrons. Question #3 asked if the NBBC had the proper signs posted hudde the establishment. The Occupancy was clearly displayed on a large sign above the rear door (facing the bay) reading "Occupancy 160." This number is consistent with the occupancy certificate in our ABC file. Additionally, there were several signs clearly pasted on the interior, side and rear of the exterior, requesting quiet and respect for the neighbors. Question #9 dealt with the exterior of the NBBC including the parking lot, sidewalk, alleys and surrounding areas. None of the detectives noticed any significant noise or disturbances attributable to the NBBC. During the late night hours, after the NBBC was closed, we noted several groups of people returning to their cars from the area of the intersection at Newport Boulevard agd 30th Street. These people would often have loud conversations, however, there was no loitering, drinking, public urination or other activities observed. The NBBC security staff was observed outside, monitoring their portion of the parking lot during and after closing time with a flashllght. Considering the exterior signs, closed windows, movement of the entrance after hours and patrolling of the rear parking lot, I would say that the NBBC is snaking a concerted effort to reduce noise and related problems for their neighbors. Question #8 asked if the Brewery Employees had received the proper certifications. On 9/6/06, Alcohol Beverage Control (ABC) Investigator D. Shaver gave LEAD Program training (Licensee Education on Alcohol and Drugs) to 17 NBBC employees. The LEAD 2, 7 Program is a voluntary prevention and education program for Califbmia retail alcohol sales licensees, their employees and applicants. The program length is 3 1/2 hours and the mission is to provide training on alcohol responsibility and the law. Another training class was offered on October 4th and 2 more employees attended. The 3 remaining employees who have not attended this class have been taken off the schedule until they complete the training. Question #6 dealt with "Calls For Service." Since previous reports have been compiled prior to 8/10/06, this report will address calls after 8/10/06. Five calls for service were associated with the NBBC address from 8/10/06 to the present. One was a traffic stop by a Patrol Officer (unrelated to the NBBC). Another was a noise complaint by an anonymous caller which Patrol Officers cleared as unfounded. On 8/19/06 at about 0058 hours, Jill Marcowitz called to report a large group of people yelling and screaming in the parking lot. Patrol Officers were dispatched at 0124 hours and arrived a minute later: The Officers cleared after advising that the NBBC was shutting down. It is unknown if the disturbance was still occurring when officers arrived. On 9/12/06 at about 0337 hours, Bruce Low called in a noise disturbance regarding a grease recovery vehicle that was parked in the alley on the east side of the NBBC and actively pumping out grease. A Patrol Officer responded at 0339 hours. I.spoke with the responding officer (Dugan) who explained that he arrived as the grease truck had finished pumping. The noise made by the truck when he was present was minimal. Officer Dugan remained for about 4 minutes until the truck left. I was also forwarded an email regarding this disturbance written by resident Bruce Low which included photos. On 9/16/06, an anonymous male cell phone caller reported being assaulted by NBBC security. Patrol Officers responded and no assault was substantiated. The units observed that the caller was intoxicated and he left the area. The Officers cleared the scene logging an assist Question #7 asks about the line to enter the restaurant. On the days when investigators entered the NBBC before 2130 hours, the entrance was on the bay /parking lot side of the restaurant. Depending on the night, sometime around 2130 to 2200 hours, the entrance would be moved to the Newport Boulevard side of the restaurant. Signs would be placed on the rear entrance doors telling patrons that the entrance was at the front of the building. They would also place a three fbot tali folding sign on the ground in front of the rear entrance saying the same thing. Signs would also be affixed to the inside of the rear doors saying, "NOT AN EXIT." The NBBC would place line delineators along Newport Boulevard to organize and control patrons waiting in line. A restaurant security employee was at the from of the line monitoring the occupancy and checking IDs. Lines were observed on several occasions, usually after 2300 hours on Friday and Saturday nights. On a Friday night (9/8/06) at 2300 hours, I waited in line for about five minutes prior to entry. When I was let inside, there were still three unoccupied tables. S 0? Question #8 asked if litter was present in the parking lot. Undercover detectives visited the NBBC six times and numerous parking lot and perimeter checks were conducted. No one observed any trash or other discarded items that would draw their attention. Question 09 addressed CUP condition #6, a provision that a portion of the restaurant remain closed prior to S p.m. (reduction in Net Public Area). Detectives also visited the NBBC during the lunch hour on Wednesd0y, 00/06 at about 1130 hours. They noted that the area in the restaurant adjacent to the brew kettles was the only section open for the small lunch crowd. The other areas of the bar and restaurant were closed. On Sunday 10/08/06, Detectives visited the NBBC, arriving at about 1230 hours. They noted that the restaurant was completely open with patrons occupying tables in all areas (no sections were closed off. When they arrived, they estimated that the restaurant was 70% full and when they left at 1430 hours it was 90% full. The primary attraction that day was NFL Football. The rear, parking lot entrance doors remained closed when not being used for ingress/egress and no unreasonable noise was emanating from the establishment. W zgq ATTACHMENT "2" Zyo hurl) -06 01:96ps FrorKal i torn la Coastal +6826906484 T -289 P.B0214pp82 F -T64 Ms, hu Mqg 'Vaughn California Coastal Commission OCT 13 10s 245 W. Broadway, STE, 380 P. d. Box 1450 CAI.1foRmA Long Beach, CA 90802 COASTAL COMM15 ;SION SOUTH COAST DISTRICT Subject; Coastal Permit Application No, 5 -93 -137; 2920 Newport Boulevard. Dear Ms Vaughn; As requested 'in the special conditions for the subject Coastal Fermat Application, this letter is. provided for the purpose of.confimiing the action of the City Council of the City of Newport/Beach relative to its approval of Use Permit No. 3485 (Re'vlsecl). As indicated In the attached excerpt of the City Council minutes dated September 27,1993; the City Mundil aproved'Use Permit No. 3485 ( Revised) vAlb the findizo and subject to the annditlonaset forth in the City Council staff report so dated September 27, 1993. In samarry, the City Council's actiog as it relates to the Coastal Coruniission's Special Conditions; included the following; 1. Tkte "net public area" of the reestaurant/browpub, which is devoted to daytime use Monday through Friday (prior to 5:00 purr.) shall be limited to 1,500 sgft. The balance of the "net public area" shell be physically closed off .to the public by a fired barrier and shall not be used until after SAO p.m. daily. 2. The property owner sh" pay for 29 in -lieu parldng spaces in the winery . Municipal Parking Lot on an annual basis for the roAttimo operation (attar p.m.) of the restaurant/brewpub use as agreed upon by the Sales Agreement between the City and the property owner. Inasmuch as the above conditions bave been established as conditious of Use Permit No. 3485; the City of Newport Beach will inforc@ said provisions in accardancc with the. Use Permit Procedures set forth in Chapter 2080 of the Muttictpal Codde It should be further noted that Item No. 2 above, is in keeping with the City Counc>7's.aedon rescinding its. previous action Whieb allowed the applicant the daytime use of in- -Bert parking in the . Cannery Village Municipal Parking Lot. We hope that this information will be sufBciettt for your purposes, and should you have. any questions feel free to contact Mr. William Ward in our office, at 644 - 3200. WY truly Yo , ut J >7, i38WIC Director Monts ..pinn"�"g�hnt�uAlr 2q 0 0 cV47 3 t°� w d 10 I1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STEPHEN M. MILES State Bar No. 185596) MILES *LAW GROUP A Professional Corporation 9911 Irvine Center Drive, Suite 150 Irvine California 92618 Telep� one: 949) 788-1425 Facsimile: ((949) 788 -1991 Attorneys for Permittee NEWPORT BEACH BREWING COMPANY, INC. CITY OF NEWPORT BEACH PLANNING COMMISSION PUBLIC HEARING REVIEW OF NEWPORT BEACH BREWING COMPANY OPERATIONS NEWPORT BEACH BREWING COMPANY CITY OF NEWPORT BEACH PLANNING COMMISSION Use Permit No. 3485 CDP No. 5 -93 -137 DECLARATION OF JERRY KOLBLI Date: January 4, 2007 Time: 6:00 p.m. DECLARATION JERRY V 2� Z 7,13 I Jerry Kolbly hereby declares: 2 3 1. I, Jerry Kolbly, am the General Manager of the Newport Beach Brewing Company. 4 I have been employed by NBBC for 1 I '/z years and have personal and first hand knowledge of 5 every aspect of the Company's operations. 6 2. I have been present at the following public hearings before the Newport Beach 7 Planning Commission: May 4, 2006 and August 24, 2006. I have also attended several outreach 8 meetings with City officials and the asserted leaders of the "Cannery Village Concerned ". In 9 particular, I have met personally with Kevin Weeda, Joe Riess, Bruce Low, Billy Stade and 10 Drew Wetherholt to share with the Cannery Village the agreeable and voluntary measures that 11 NBBC is willing to implement and has subsequently implemented. 12 3. On one occasion, on August 2, 2006, I met with the representatives of Cannery 0 F 13 Village along with MT. Jim Campbell, City of Newport Beach, and our attorney, Stephen M. 14 Miles to discuss the operation modifications that NBBC desired to implement to address noise 3 U 15 concerns raised by the Cannery Village. That particular meeting ended abruptly when Mr. Bruce a 0 16 Low began displaying behavior of frustration by cursing at the NBBC representatives and W 17 aggressively confronting our attorney. Other representatives of the Cannery Village Concerned w 18 apologized for Mr. Low's behavior and we continued to discuss the issues with the Cannery 19 Village representatives. 20 4. Attached as Exhibit "A" to this Declaration is a real estate listing for Mr. Low's 21 Cannery Village residence. Mr. Low originally purchased his residence f&mMr. Kevin Weeda, 22 a fellow member of the Cannery Village Concerned that has illustrated his financial interest in 23 acquiring the NBBC property. The asking price for Mr. Low's residence ($3,295,000.00) does 24 not appear to indicate any issue with the quiet enjoyment of his property. 25 5. Our next meeting with Mr. Low, on Thursday, November 30, 2006, was much 26 more productive. This meeting followed the issuance of the Police Investigative Report dated 27 28 DECLARXTIT)N Y 7,13 I November 3, 2006, confirming the general absence of condition violations, absence of incidence, 2 and absence of any potential noise impacts caused by NBBC operations. 3 6. Following the Planning Commission hearing on August 17, 2006, as the general 4 manager for NBBC, I have overseen several actions taken in response to the direction of the 5 Planning Commission. I believe that these actions address all the concerns that were raise by 6 the public at the Planning Commission hearing. I feel that the actions taken address not only the 7 potential noise impacts that NBBC operations may have on its neighbors, but, as important, the 8 actions taken help address the impacts to the neighbors that are caused by the public generally. 9 7. Since September 1, 2006, NBBC has actively relocated the line that used to form 10 at the parking lot entrance to the front of the building. This action has eliminated any potential I 1 noise, caused by.NBBC patrons, that could be perceived by the Cannery Village Lofts. 12 8. On September 6, 2006, NBBC closed its operation to the public to enable every 0 13 employee and owner of NBBC to complete a certified alcohol service education course referred 0 0 14 to as "License Education on Alcohol and Drugs" ( "LEADs "). Every working employee and 3 c°� 15 owner of NBBC completed the LEADs class. The certifications received by NBBC are attached 0 16 hereto as Exhibit `B ". 17 9. On September 24, 2006, as part of NBBC's Security Plan, l prepared and 0 w 18 submitted to each resident of the Cannery Village Lofts, a letter specifying a phone number for 19 the residents to call, if and when they have any safety concerns or any concerns with the 20 operations of NBBC or the utilization of either NBBC's parking lot or the municipal parking lot. 21 To date, NBBC has not received any phone calls from the Cannery 'Village regarding any 22 complaints or concerns. 23 10. On or about September 30, 2006, I received a copy of a letter addressed to the 24 Newport Beach Planning Commission from Ms. Judy Leeper. The letter consists of testimony 25 from a Cannery Village resident that for 10 years, has lived adjacent to the NBBC parking lot 26 without complaint, Ms. Leeper notes that noise concerns have always been worked out with 27 NBBC and that the real problem is the public's use (as opposed to NBBC patron's use) of the 28 -3- T JERRY 2 yq z 0 O pg O 0 a • o � h 0 w 2 3 0 5 6 71 9' loll 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 NBBC and municipal parking lot. A copy of the letter is attached, hereto, as Exhibit "C." The letter confirms the willingness of NBBC to address any noise complaints and further shows that any potential noise issues have been rectified by the modification of the NBBC entrance. 11. On Saturday, October 7, 2006, I spoke with Bruce Low's wife. She indicated that she had called NBBC at or around 12:30 a.m. Saturday morning and was not successful getting through. Later that day, Bruce Low's wife apologized for making an issue and explained that she was overly concerned because she was home alone. 12. On October 13, 2006,1 submitted engineered plans for the redesign and enclosure I of the NBBC trash bin located between NBBC's parking lot and the municipal parking lot. Upon approval of the plans, NBBC, in conjunction with our landlord, stands ready to implement immediate construction of the new trash enclosure. 13. In response to potentially unreasonable noise caused by the disposal of recycled glass bottles, NBBC modified its Bottle Recycling Program. Now the collection of glass is conducted inside the Restaurant and Brewpub to eliminate any noise for the adjacent residences. Furthermore, the bottles on collected in transportable containers that are readily loaded from the front of the building — thereby eliminating transfer and disposal noise. 14. For approximately five months, from August2006 through December 2006, NBBC has videotaped and taken noise measurements of the NBBC parking lot and municipal parking lot. The general findings from the taping and measurements are that, even when the NBBC lot is full during hours of operation, the parking lot is quiet. On occasion, our Security Team has observed loud and boisterous activity in the municipal parking lot afPer NBBC's hours of operation. The source of the noise is from pedestrians arriving from other establishments after NBBC has closed. In addition, on occasion (e.g., September 16, 2006, at 1:00 a.m.) bottles being picked up from Abe Restaurant have resulted in a very loud crashing sound. 15. On January 2, 2007, I generated a quarterly sales report for NBBC. Upon request from the City, NBBC will make the sales report available to the City for review and inspection. For the final quarter of 2006, alcohol sales accounted for 47.60 percent of total NBBC sales. 2q5 2y� EXHIBIT "A" Lei 2q7 z Kies., �nlS.asYL '+�Ni i f) N TE RNVCT 10 N A L 3 1[fl�l j] y - 4`i m ...y 1. S ] Y �• r I�I�M 1F i a"3 -_.. 1tEr�.r3,s.,a. € �� �fe'+R to VroYI •i ,rr1i411ca�1��1���taAA�A! 4�' `��� � ► ilkt�l�I,�� s 4 - at 'fir. aa -' i i.n. mot,• 6 �10.C� l -' 140 Newport Center Dr 'Suite 100 Newport Betich Calla nl1 a 92660.: 94ri 64O Moo .H ll 0 1 A l J M h(l Tnr IJ IIO t J, 'Ikd L g[i� T 1 Ilw d.l a A�mow14... 1 :sr l.I rvl i. . nJ lrl v..WmW olv�0arl Iry rlvl • uI AI I..rMwlln >a..S4��m �J �':' '..v 91p y.yaelr.le_v I I Iy4rllt 'e I( d,in at.l JJ n ly Hill 1� {BI 0 301 I imA 303 s. 50q B El'XILIXIBIT "C" 0 305 September 30, 2006 City ofNewport Beach, Planning CommissioA City Nall 3300 .Newport Blvd. Newport Beach, CA 92663 -3884 Re: Newport Beach Drawing Company Use permit No. 3485 Dear Commission Members, I am writing ht support of the Newport Bomb Brewing Company and to let you know that I am iu favor ofthe Brewing Coma ayy's use permit to remain as is and to not be modified. I have lived in the Cannery Village bor 10 years and our property is located across the street from the Brewery parking lot, and the Public parking lot. The Brewery has been a.good neighbor and the manager has always tried to work with us whenever we have bad, a. noise complaint. The Brewery was bare long beftre the rest of us built and purchased :pus:homes . They are a part of the neighborhood and Jim" we all chose to move into the'et *011ment of the Cannery Village. It is an "urban" neighborhood and there is going to bo noise. It would be the same environment if we chose to build our loft style homes in downtown LA or Manhatten. That was the draw for us. We chose the urban Loft style living as opposed to -a residential neighborhood. Since the most recent lofts have been built and moved into they ofcourse havc bad to adjust to this environment, and once again I see the managtnent team trying to make tbcir neighbors happy by moving the entmuce to the Newport Blvd. door instead of the parking lot so that there Is less noise. I strongly £eel that if the Brewery's use permit is modified or provoked nothing will have changed. The public parks in the both the Brewery lot and the public lot to make their rounds to the restaurants in the am& The noise comes from the parking lots and so I feel that nothing will change just because the Brewery is changed. The Brewery is one of the restawants that our family frequents and I would be sad to see it go. I an unable to attend the meeting on October Sth and so I wanted to voice my opinion in writing. k0th Street Newport Beach, CA, 92663 949 - 522 -9593 ec: NewpW- ReaclrBmw*CompaW 30(0 5 � ' z og�g C7 0 a� � o a d 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 R3 STEPHEN M. MILES (State Bar No. 185596) MILES * LAW GROUP A Professional Corporation 9911 Irvine Center Drive, Suite 150 Irvine California 92618 Telephone: (949) 788 -1425 Facsimile: (949) 788 -1991 Attorneys for.Permittee NEWPORT BEACH BREWING COMPANY, INC. CITY OF NEWPORT BEACH PLANNING COMMISSION PUBLIC HEARING REVIEW OF NEWPORT BEACH BREWING COMPANY OPERATIONS I NEWPORT BEACH BREWING COMPANY CITY OF NEWPORT BEACH PLANNING COMMISSION Use Permit No. 3485 CDP No. 5 -93 -137 DECLARATION OF IRVING M. CHASE Date: January 4, 2007 Time: 6:00 p.m. on 3U� 309 I Irving M. Chase hereby declares: 2 3 1: I, Irving M. Chase, am the manager of S &A Properties, which manages the 4 property for Fainbarg and .Feuerstein Properties — the owner of that property leased to the 5 Newport Beach Brewing Company (the "Property ") for the operation of their Restaurant and 6 Brewery. The Property is one of approximately 10 holdings owned and managed by S &A 7 Properties inNewportBeach, Perris, Costa Mesa, Campbell, Santa Clara, Tustin, and Camarillo. 8 The National holdings for S &A Properties are in California, Washington, Oregon, Nevada, 9 Arizona, Louisiana, Texas, and Florida. 10 2. Subsequent to the August 17, 2006, Planning Commission hearing concerning the 11 Newport Beach Brewing Company permits, management for the Newport Beach Brewing 12 Company ( "NBBC ") arranged a meeting with S &A Properties to discuss several tenant Z13 improvements to be made by NBBC to address concerns raised by the Cannery Village and the p14 Planning Commission. 15 3. On or about August 24, 2006, I met with NBBC Management at the Property and,, 0 16 together, we agreed to relocate the existing mailbox location for the Property to enable NBBC n 17 to establish a new entry point to the Restaurant and Brewery from the front of the building rather 0 w 18 than from the parking lot. S &A Properties relocated the mailbox. 19 4. In addition, S &A Properties agreed to redesign the existing trash enclosure 20 between the Property's parking lot and the City's adjacent municipal lot. S &A Properties' 21 consulting architect designed the trash enclosure to include a roof and Rnproved security and 22 submitted the final design to NBBC on September 21, 2006. Construction of the trash enclosure 23 can be readily completed within one week of design approval by the City. 24 5. Fainbarg and Feuerstein owned various properties in Cannery Village and sold 25 them to Mr. Kevin Weeda, a developer active in Cannery Village. Recently, Mr. Weeda has 26 approached S &A Properties to voice his interest in the acquisition of the Property. On at least 27 three separate occasions between 2004 and 2006, Mr. Weeda approached me and offered to 28 -2- DECLTRAXION OF IRV ING M. CHASE 309 .. ___ _..._ ..... ... w.. .. a n rnurzmaIQQ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V UU4 purchase the Property, I informed Mr. Weeda on each occasion that tho property is subject to a long term lease and that the Property is not for sale, 1 declare under penalty of perjury under the 1 the State of California that the foregoing is true and correct. J Ow 2y 7 Dated: 6 Yry ng M, Chase v Sol z 0 0p C0 0 3v "a z io N a 1 2 3 4 5 r r' 10 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STEPHEN M; MILES (State Bar No. 185596) MILES *LAW GROUP A Professional Corporation 9911 Irvine Center Drive, Suite 150 Irvine California 92618 Telepl'ione: 949 788 -1425 Facsimile: (949788 -1991 Attorneys for Permittee NEWPORT BEACH BREWING COMPANY, INC. CITY OF NEWPORT BEACH PLANNING COMMISSION PUBLIC HEARING REVIEW OF NEWPORT BEACH BREWING COMPANY OPERATIONS NEWPORT BEACH BREWING COMPANY Use Permit No. 3485 CDP No. 5•93 -137 DECLARATION OF ERIC BLAISDELL CITY OF NEWPORT BEACH PLANNING COMMISSION Date: January 4, 2007 Time: 6:00 p.m. P 3(0 r 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 241 25 26 27 28 Eric Blaisedell hereby declares: f. 1, Eric Blaisedell, am the head of Security for the Newport Beach Brewing Company. I have been employed by Newport Beach Brewing Company since May 2000. 2. On Saturday, October 7,2006, 1 was working the evening security shift when I was approached by Mr. Bruce Low. Mr. Low conveyed to me that he felt that the noise concerns with the NBBC panting lothad been addressed with the relocation of the evening entry from the parking lot to the front of the Restaurant. 3. On Saturday evening, October 7, 2006, I observed that Mr. Billy Stade hosted a party at his Cunnery Village Loft located adjacent to the NBBC parking lot. Several of Mr. Stade's guests parked in the NBBC parking lot and municipal parking lot. Because of the noise caused by Mr. Stade's party and his guests, guests littering and loitering in the parking lots, and a guest that was observed exiting the loft and urinating on the front of the building, NBBC Security wade several individuals leave the NBBC parking lot.. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: January 4, 2007 r He LBIaise e A CLARA O—N OF ERIC BLAISED LL . A�Rii�tTDAkY.Q�]RATION . 7 •e� 07DOb7RRbRr dJ01SNOOq Tnn dRflS7fl /n 4,n uar, 31� MILES • LAW GROUP A PROFESSIONAL CORPORATION LAND USE 9911 IRVINE CENTER DRIVE, SUITE 150 ENVIRONMENT IRVINE, CALIFORNIA 92618 (714) 393 -3389 ENTITLEMENT FAX: (949) 788 -1991 SMILES @MILESLAW GROUP. COM January 9, 2007 VIA ELECTRONIC MAIL [JCampbell @city. newport- beach. ca. us] AND U.S. MAIL Mr. James Campbell, Senior Planner City of Newport Beach Planning Department 3300 Newport Boulevard Newport Beach, CA 92663 Re: Unfounded Complaint Lodged with the Newport Beach Police Department Dear Jim: Today you asked me to "find out what happened Saturday morning" and I've interviewed the appropriate individuals to answer your question. Apparently, Mr. Bruce Low has wasted no time in continuing his unfounded allegations against Newport Beach Brewing Company ( "NBBC ") by writing you a letter dated January 6, 2007, containing claims against both NBBC and the City. In his letter Mr. Low takes issue with NBBC's voluntary relocation of the evening line from the parking lot entrance to the front of the building and he alleges that Friday, January 5, 2007 (the day after the NBBC Use Permit hearing), "was worse... than it (sic) has been in almost a year." Mr. Low's ranting about the queue process is ridiculous. Of all people, Mr. Low should be aware of the line relocation process that NBBC has implemented since September 1, 2006. No complaints (reasonable or otherwise) have been issued by the Cannery Village residents regarding line noise or the so called "party" in the parking lot(s). In fact, the residents of the Cannery Village Lofts have overwhelmingly supported the line relocation - Mr. Low included. Mr. Low's most recent diatribe is simply bad faith. Fundamentally, Mr. Low did not raise any concern with the line relocation at the January 4, 2007 hearing and the City should not entertain his post hoc, unfounded allegations when Mr. Low chose not to raise such issues during the administrative proceeding. Mr. Low understands that his concerns are not legitimate and that they would have been readily addressed and summarily refuted in the public forum. His failure to properly voice concerns at the Planning Commission level should not be rewarded by allowing this matter to be heard by the City Council on appeal at no cost to Mr. Low. 3(2 Mr. James Campbell January 10, 2007 Page 2 of 3 Mr. Low is very much becoming the "little boy who cried wolf." The only distinction here is that, while a wolf may appear from time to time (without the wolf becoming a nuisance or a violation of Use Permit conditions), the wolf has taken a hiatus from the Cannery Village due to NBBC's ongoing efforts to eliminate noise. All that the City is now dealing with is Mr. Low's cries. At least now the City should realize that it is dealing with one or two outspoken individuals rather than any actual represented class of residents (e.g., no wolf in sheep's clothing here). Not only did Mr. Low fail to continent on January 4, 2007, but no individual came forward with any evidence of the 50 or 60 residents that were allegedly represented by Mr. Low. In fact, the hearing was conducted without a single reference to the "Cannery Village Concerned" - the nebulous association that started the false allegations against NBBC. With respect to the incident that a resident of the Cannery Village Lofts called in around 12:30 a.m. on Saturday, January 7, 2007, Mr. Eric Blaisdell, a NBBC Security personnel on duty the night of January 6 and morning of January 7, 2007, is prepared to submit a declaration, under penalty of perjury that: 1) Every 15 minutes during the late evening hours, the NBBC parking lot was walked and at 12:30 a.m., the NBBC parking lot was clear of all customers and three parking slots were empty; 2) At 12:45 a.m., the NBBC parking lot was empty of customers and six parking slots were empty; 3) On my way back to the back door following my 12:45 a.m. walk of the NBBC parking lot, I was met by two Newport Beach Police Officers that informed me that they were responding to a call from a resident behind the Brewing Company about a 10 person fight that was taking place in the parking lot, and; 4) The police officers reported the call as an unfounded complaint and cleared NBBC of the call. From my additional interviews with NBBC management and personnel this morning, I've confirmed that collectively, nothing was observed in the way of any persons fighting or yelling in either the NBBC parking lot or the municipal parking lot between Midnight and 1 a.m. on Saturday -- not 10 people, not 4 people, not 2 shirtless people. The residents of the Cannery Village Lofts continue to make false accusations and call in false reports to the Newport Beach Police Department without recourse. Part of this willingness is the misunderstanding on their part that any noise from NBBC's operation is automatically unreasonable noise. This is untrue - especially in a mixed use zone that was aptly described in Mr. Low's residential listing materials as the "oh so hip work/loft in the heart of what's happening in Newport Beach's stylish Cannery Village." Certain noise levels are permitted and will occur. Additionally, from time to time, patrons using either the NBBC parking lot or municipal parking lot may become boisterous in their activities. That is simply a facet of parking lots catering to patrons of restaurants, brewpubs, and bars that are open until 1 a.m. and 2 a.m. on weekends. While NBBC can and will take measures to assure that its operations remain in compliance with its Use Permit conditions, a reasonable number of incidences will occur outside the Brewing Company that may or may not be caused by its patrons. This is simply a realistic outcome of a permitted Restaurant/Brewpub that has been found on several occasions to be consistent with the after -the -fact construction of the Cannery Village Lofts. NBBC does not understand why Mr. Low and his fellow cohorts of the Cannery Village Lofts now feel that they can exaggerate facts and fabricate the truth. One reason that Mr. Low may feel 313 Mr. James Campbell January 10, 2007 Page 3 of 3 empowered to submit groundless assertions is the ongoing willingness of the City to entertain groundless assertions. NBBC notes that at least one Planning Commissioner stated that NBBC should not be commended for the voluntary actions that they've implemented - at a time when the Newport Beach Police Department investigation verified no violations and no actionable problems. Also, Mr. Harp opined that findings could be made for revocation of the Use Permit to enable a substantial modification of the Use Permit conditions. Mr. Harp's example of evidence that would support the findings was a "violation" of the Use Permit prior to September 2006 when a "full menu" was not provided during all hours of operations. The example is grossly flawed. Currently, Condition 10 of the Use Permit does not require a "full menu" during all hours of operation. Instead, the requirements of Condition 10 are that food service cannot be merely incidental to alcohol sales and the approval of the Use Permit shall not be construed as the approval of a bar "serving alcoholic beverages during hours not corresponding to regular meal service hours. " A full menu has nothing to do with Condition 10 as currently applicable to NBBC's operations. Nevertheless, NBBC has agreed to a modification to Condition 10 and currently provides a "full menu" during all hours of operations as another way to advance the primary food service of the Restaurant /Brewpub. As confirmed by Officer Frizzell's direct testimony supported by the Police Investigative Report, NBBC has not violated the conditions of its Use Permit and no such findings could possibly be made by the Ciry. However, when staff continues to erroneously offer that findings of violation could be made, individuals like Mr. Low may remain inclined to assert unfounded claims in an effort to undermine NBBC's business operations and solid reputation within the community. Simply put, if you treat someone like a child, they will continue to act like a child. Thank you for your consideration on this matter. If you have any questions, please call me. Very truly yours, MILES Law GROUP, P.C. L-3 Stephen M. Miles cc: Mr. David Lepo, Director of Planning Mr. Craig Frizzell, Newport Beach Police Department Mr. Aaron Harp, Assistant City Attorney Mr. Jeffrey Cole, Chairman, Newport Beach Planning Commission Mr. Jerry Kolbly, General Manager, Newport Beach Brewing Company 3(q Bruce I Low 411 29th Street Newport Beach, California 92663 January 6, 2007 The City of Newport Beach Planning Department 3300 Newport Boulevard Newport Beach, California 92663 Attn: Mr. David Lepo, Planning Director Re: Newport Beach Brewing Company (Use Permit No. 3485) Dear David, One day has passed since the Newport Brewing Company hearing at the Planning Commission. It appears the new provisions or modifications of the Use Permit are implemented. It was worse last night than It has been In almost a year. Quite frankly and unfortunately, you and your department have assisted in creating a complete failure to the Brewery and the neighborhood. With the creation of a condition that moves patrons to the front of the building to gain entrance only when a group forms in a "queue" requires that someone count the number of persons and make a determination of "back door" or "front door" on a constant basis. This Is not practical as I evidenced last night. Who is directly responsible to make the count and move the door? How often does that person count the "queue "? What does that person do when the "queue" dissolves at the front door? Where do I place the security and when should I move them and who is responsible to see It Is done? Who moves the sign that tells patrons to enter from the "back door ", no, the "front door?" It is conceivable that the entrance and the security could be moved back and forth all night. It is not conceivable that this plan Is efficient or helpful. How many patrons waiting to gain entrance does It take to make a disturbance? It is less than or greater than the number of patrons it takes to make a "Queue "? This is an ineffective and under considered solution. It does not work! It is a Chinese fire drill! When the back door is used as an entrance, it is also used as an exit. This allows groups of patrons to enter and exit the building and carry the party in and out of the parking lot. it is again and instantly, unbearable. The party In the parking lot is not acceptable! It is a nuisance! This morning, at 12:32 a.m. I was again awoken by screaming in the Newport Brewery parking lot. I opened my window and observed four young men, two without shirts on, in a shoving and screaming match that then ensued into a four person fight. I called the Newport Beach Police 315 Department and spoke to "Loren" at the front desk. She took the information and asked me if`I was willing to sign an "Affidavit"pertalning to the report.. 1. responded yes. The fight broke up at 12:37 a.m. Two of..the,young men,walked back into the Newport Brewery and two left the parking lot in a dark colored Chevy truck. I waited until 12:45 a.m. to obserid'a police car. No police carshoWed up and I went back. lobed. There were no securupersonnel in the parking lot from the Newport Brewery. This type of circumstance Is the norm. . The Planning Department, the Police Department, the Brewery management view the problems from the Newport Brewery in a vacuum. None of you or them have first hand knowledge of the abuses that -occur daily. None of you. are there at 12:30 a.m. ; You and your Staff, honorably, want to solve the problems of the Brewery by talking to the Brewery.,, management in negotiations. You ask thePojice Department to give you objective- information; but their response time is not effective to view the-abuses. Bythe;way, how long does it take for an over served person to urinate on a vehicle's tire? How will the response time of the PoliceDepartment be effective in intervention and citation? Do you believes resident should take a sample and send it to the lab for a DNA analysis (as suggested by the Newport Beach Police Department) before one agrees it occurred? Do I need a witness that this person consumed the beverage at the Newport , Brewery? The actions of the Planning Commission, through the recommendation of you and your Staff, is a huge step backwards for the neighborhood. Unfortunately,`even if you want to, you still do not get it. We had hoped that you-would have consulted the neighborhood to develop effective solutions to the Brewery problems. After all, it was a neighborhood proposal to move the patrons to the front door in _ the first place.- The entry door restriction works much better and with less accountability by simply assigning a time to change the entry point. gp.m. worked for the neighborhood in the last few months and it would be.working now without the change. Thanks for asking, Davidl Since you dgsigned, or at least bought into the failure, without neighborhood gor su(tatlon, would yoy mind explaining to the neighborhood how the ioadiIhg of patrons to front,or back doors - prompted by a "Queue" functions for the benefit of the neighborhood; what srecific problems it cures and why you believe it is a good solution? Si ncerely, Bruce J. Low 3 l (o Item 7 Planning Commission Resolution No. 1709 317 BLANK BLANK �I� RESOLUTION NO. 1709 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH MODIFYING THE CONDITIONS OF APPROVAL OF USE PERMIT NO. 3485 FOR PROPERTY LOCATED AT 2920 NEWPORT BOULEVARD (PA2006 -177). WHEREAS, In 1993, the City approved Use Permit No. 3485 subject to findings and conditions of approval authorizing a restauranttbrewpub with a Type 23 Alcoholic Beverage Control (ABC) license to operate at 2920 Newport Boulevard within the Cannery Village area. The restaurant and brewpub began operations under in 1994 using the fictitious business name - Newport Beach Brewing Company; and, WHEREAS, In 1999, the operator of the establishment requested and received approval of an amendment to Use Permit No. 3485. The amendment allowed the restauranttbrewpub to operate with a Type 75 ABC license and the amendment was subject to findings and revised conditions of approval; and, WHEREAS, In January of 2006, the City of Newport Beach received complaints from neighbors alleging that the Newport Beach Brewing Company was violating the conditions of Use Permit No. 3485. Alleged violations included, among other things: operating a bar rather than a restaurant in violation of Condition No. 10; alcohol sales and service in excess of food sales in violation of Condition No. 9; opening the entire dining area on weekends before 5PM in violation Condition No. 6 and in violation of Coastal Development Permit No. 5 -93 -137, trash in the parking lot in violation of Standard Condition E; failure of the establishment to curb unruly patron behavior outside the establishment in violation of Standard Condition D; and inadequate training of the owner and employees in responsible methods and skills for serving and selling alcoholic beverages in accordance with Standard Condition F. Neighbors contend that patrons create noise, cause property damage, urinate, defecate, and conduct sexual activities during the late evening and early morning hours and that the operator was unable or unwilling to discourage or correct these objectionable conditions. Based upon the complaints received, Use Permit No. 3485 was referred to the Planning Commission on May 4, 2006 for review; and, WHEREAS, During the May 4, 2006 meeting of the Planning Commission, testimony from neighbors of the establishment and the operators of the Newport Beach Brewing Company was considered by the Planning Commission. The Commission also considered a report prepared by staff outlining the complaints and discussing potential violations of the conditions of approval. The following facts were identified: • Patrons line up outside the premises to enter the establishment typically Thursdays through Saturday during the late evening or early morning hours. This congregation of patrons created objectionable conditions to nearby residential neighbors and the operator of the use (Newport Beach Brewing Company) did not take all reasonable steps to discourage said objectionable conditions as required pursuant to Standard Condition D. 31q • The operator of the restaurant/brewpub uses security to control occupancy and patrons and minors are excluded from entry during the late evening and early morning hours indicative that the operator of the use was operating the use like a bar rather than a restaurant and brewpub. • The operator implemented a limited "late night' menu and food sales were either discouraged or non - existent or the kitchen was closed before the establishment was closed indicative that the operator of the use was operating the use like a bar rather than a restaurant and brewpub. • The operator of the use indicated that alcohol sales exceed food sales most of the time and that alcohol sales are approximately 90% of sales during the late evening and early morning hours. This high percentage of alcohol sales would not constitute ancillary alcohol sales to food sales in violation of Condition No. 9. • The net public area of the establishment is no more than 1500 square feet Monday through Friday before 5PM and the net public area exceeds 1500 square feet before 5PM on Saturday and Sunday in violation of Condition No. 6. • Owners, managers and employees of the Brewing Company had not undergone a certified training program in responsible methods and skills for serving and selling alcoholic beverages in accordance with Standard Condition F. • The site was found to be generally free of litter and not in violation of Standard Condition E. At the conclusion of the discussion, the Planning Commission determined that there was sufficient information to indicate that the use was operating in violation of the conditions of approval. Additionally, the Commission found that there was sufficient information to warrant consideration of modifying the conditions of approval as changes to the conditions could potentially alleviate the problems reported by neighbors. The Commission directed staff to place the matter on a future agenda for possible action; and, WHEREAS, On August 17, 2006, the Planning Commission held a public hearing regarding the alleged violations of and potential modifications to the conditions of approval of Use Permit No. 3485. The hearing was noticed in accordance with Chapter 20.92 of the Municipal Code and the operator of the Newport Beach Brewing Company was also mailed a notice of the hearing; and, WHEREAS, During the August 17, 2006 hearing, testimony and information presented to the Commission confirmed past violations of the conditions of approval. At the conclusion of the hearing, the Planning Commission directed staff to set Use Permit No. 3485 for possible modification and /or revocation; and, WHEREAS, On January 4, 2007, the Planning Commission held a noticed public hearing on the possible modification of conditions and /or revocation of Use Permit No. 320 3485. Testimony and a staff report including a report prepared by the Newport Beach Police Department were considered by the Planning Commission. The Planning Commission finds that: • The operator has discontinued the use of the limited late night menu and has made the complete menu available at all hours the establishment is open. • The operator has increased sweeps of the parking lot and exterior of the site to discourage any objectionable behavior from patrons or other people at the site. • The operator has voluntarily moved the entrance of the establishment when a line forms to the Newport Boulevard side of the building, which has reduced conflicts with abutting residential uses. • The operator, owners and employees has successfully completed the L.E.A.D training program in responsible methods and skills for serving and selling alcoholic beverages as required pursuant to Standard Condition F. • The operator is willing to install a cover on the trash enclosure to better mitigate the aesthetics of the existing trash enclosure. • The operator has also made other physical and operational changes as reflected in the modified conditions of approval contained within Exhibit A. • The physical and operational changes have had a positive impact to the neighborhood and have reduced incidents of nuisances, and, WHEREAS, Based upon the information and testimony presented to the Commission, the use was operating in violation of the conditions of approval in the past and the operator has abated all known violations. WHEREAS, changes to the conditions of approval are necessary to memorialize the physical and operational changes instituted voluntarily by the operator that have had a positive effect on the compatibility of the use with the neighborhood. Additionally, changes to the conditions of approval are necessary to clarify the meaning and intent of the conditions to avoid future questions. NOW THEREFORE, THE PLANNING COMMISSION HEREBY RESOLVES AS FOLLOWS: SECTION 1. The conditions of approval for Use Permit No. 3485 are amended to read pursuant to Exhibit "A ". SECTION 2. This action shall become final and effective fourteen (14) days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20, Planning and Zoning, of the Newport Beach Municipal Code. 5Zi PASSED, APPROVED AND ADOPTED this 4th day of January 2007. AYES:Peotter, Cole, McDaniel and TeoMe NOES: Eaton RECUSED: Hawkins 322 EXHIBIT A Conditions of Approval Use Permit No. 3485 CONDITIONS: The proposed development shall be in substantial conformance with the approved site plan, floor plan and elevations, except as noted below. 2. Deleted 3. The applicant shall provide a minimum of one parking space for each 50 square feet of net public area before 5:00 p.m. and one parking space for each 40 square feet of net public area after 5:00 p.m. in conjunction with the restaurant/brewpub. 4. Deleted 5. The property owner shall pay for 29 in -lieu parking spaces in the Cannery Village Municipal Parking Lot on an annual basis for the nighttime operation (after 5:00 p.m.) of the restaurant/brewpub use as agreed upon by the Sales Agreement between the City of Newport Beach and the property owner. 6. The net public area of the restaurant/brewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 p.m.) shall be limited to 1,500 square feet. The balance of the net public area shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m.. 7. The hours of operation for the restaurant/brewpub shall be limited to the hours between 6:00 a.m. and 11:00 p.m. Sunday through Thursday and between 6:00 a.m. and 1:00 a.m. on Friday and Saturday. 8. All employees shall park either in the privately owned off -site parking area or in one of the municipal parking lots in the area. 9. The operation of the brewery and the service of alcoholic beverages shall be ancillary to the food service operation of the restaurant (e.g. the brewery and the service of alcoholic beverages may not be conducted without the concurrent operation of the restaurant during all hours the use is open for business). The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The operator shall at all times maintain records which reflect separately the gross sales of food and the gross sales of alcoholic beverages. Said records shall be kept no less frequently that on a quarterly basis and shall be made available to the Planning Director upon request in conjunction with the Planning Commission's review of this Use Permit for alleged violations of conditions. 3Z3 10. The principal use authorized by this Use Permit is a restaurant/brewpub. The accessory operation of a bar is permitted provided that the kitchen remains open for the service of meals and that a full menu is provided. This Use Permit shall not be construed as the approval of a bar, cocktail lounge, or other use with the principal purpose of serving alcoholic beverages during hours not corresponding to regular meal service hours nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and /or dancing. The kitchen of the restaurant/brewpub shall be in operation to serve meals at all times that the business is open. A full meal menu (including the service of those meals ordered) shall be made available. Menus and condiments shall be available at the tables at all times. 11. No outdoor loudspeakers or paging system shall be permitted in conjunction with the proposed location. 12. A washout area for refuse containers shall be provided in such a way as to allow direct drainage into the sewer system and not into the Bay or storm drains, unless otherwise approved by the Building Department. 13. Kitchen exhaust fans shall be designed to control smoke and odor to the satisfaction of the Building Department. 14. All mechanical equipment and trash areas shall be screened from surrounding public streets and alleys and adjoining properties. The existing trash enclosure shall be covered and the doors or gates to the enclosure shall be modified to be self- closing and self- locking for security. 15. Deleted 16. Should prerecorded music be played within the restaurant facility, such music shall be confined to the interior of the building, and all doors and windows shall be kept closed while such music is played. 17. A special events permit is required for any event or promotional activity outside the normal operational characteristics of this restaurant business that would attract large crowds, involve the sale of alcoholic beverages, include any form of on -site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. 18. Should this business be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing company. 19. The parking lot entrance to the building shall not be used as an entrance when a line of patrons seeking entrance to the establishment forms. 20. The operator shall discourage loitering on site at all times the establishment is open or employees or owners are present. 3;2q 21. The operator shall conspicuously post and maintain signs indicating to patrons to be courteous to residential neighbors while outside the establishment. 22. The applicant shall prepare a detailed security operations and property maintenance plan within 45 days of approval of this amendment to the Use Permit. The plan shall be subject to the review and approval of the Police Department and Planning Department. The plan shall specifically outline methods and personnel necessary to control patron activity on and abutting the project site to minimize or avoid land use conflicts. When security services are required pursuant to the plan, security shall be provided whenever necessary and a minimum of 30 minutes after the posted closing time. The property maintenance portion of the plan shall address activities including, and not limited to, trash pickup, recycling disposal and pickup, grease trap cleaning, cooking oil recycling, brewery servicing, deliveries, cleaning or general building maintenance. 23. Deliveries and exterior property maintenance activities shall not be conducted between 8PM and 8AM daily. 24. The use shall maintain a Type 23 or a Type 75 license to sell alcoholic beverages from the State Department of Alcoholic Beverage Control. No other license type shall be permitted without review and approval by the Planning Commission. 25. Live entertainment and dancing shall be prohibited without an amendment to this Use Permit and a Live Entertainment Permit and /or a Cafe Dance permit issued by the City Manager's Office. 26. The operator shall not prohibit persons under the age of 21 from entering the establishment based solely upon age. 27. This Use Permit shall be reviewed by the Planning Commission at a noticed public hearing on or before October 30, 2007. The Planning Director may schedule additional reviews of this permit if there is a determination that the use directly causes or is contributing to conditions found to be detrimental to the community (this provision shall not be construed to diminish the City's ability to enforce this Use Permit or any aspect of the Municipal Code). STANDARD CITY REQUIREMENTS: A. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. B. Signs and displays shall not obstruct the sales counter, cash register, seller and customer from view from the exterior. C. Loitering, open container, and other signs specified by the Alcoholic Beverage Control Act shall be posted as required by the ABC. D. The applicant shall take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, alleys and areas surrounding the alcoholic beverage outlet and adjacent properties must be taken 325 during business hours if directly related to the patrons of the subject alcoholic beverage outlet. E. The exterior of the alcoholic beverage outlet shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. F. All owners, managers and employees serving and /or selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. To qualify to meet the requirements of this section a certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service or other certifying /licensing body, which the State may designate. The operator shall provide proof of completion for all owners, managers and employees within 30 days of the approval of this amendment and new employees shall successfully complete the training within 30 days of initially starting work. G. The project shall comply with the provisions of Chapter 14.30 of the Newport Beach Municipal Code for commercial kitchen grease disposal. H. All signs shall conform to the provisions of Chapter 20.67 of the Municipal Code. This Use Permit for an alcoholic beverage outlet granted in accordance with the terms of this chapter shall expire within 12 months from the date of approval unless a license has been issued or transferred by the California State Department of Alcoholic Beverage Control prior to the expiration date. J. Coastal Commission approval shall be obtained prior to issuance of any building permits. K. The Planning Commission may add to or modify conditions of approval to this Use Permit upon a determination that this Use Permit causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. 32(� SLAMK Item 8 Appeal dated January 12, 2007 3 27 BLANk BLANK p? CITY OF NEWPORT BEACH APPLICATION TO APPEAL DECISION OF THE PLANNING COMMISSION Application No. Name of Appellant (per j (,o7,5 or person filing: tN try V i(l) aw-�MAhone: b4f Address: 5�`� fz:'Cre `fJ 3 c 21,3 Date of Planning Commission decision: 20 Regarding application of. t; �nf PDt� t� P"6' p w Filew1 N (s �0 for (Description of application filed with Planning Commission) Ler r-V A If T5 Reasons for Appeal: Co M tA C/FS �n4j fit t L•ED T-E '(�11 `( S9ti�U� cif LTY �rsY>` 'T1s -V N kA0u7WT 6f Cdrl�t.l'B1LuJl,Nr G.o�z�ti Go-r✓rtt/I,��coni %'L+n�l,lT _ �` b µ+°`'�`E �� !/ FOR OFFICE USE ONLY 1,q- Date a e Date Appeal filed and Administrative Fee received: Hearing Date. An appeal shall be scheduled for a hearing before the City Council within AMy (60) days of the filing of the appeal unless both applicant and appellant or reviewing body consent to a later date (NBMC Sec:. 20;95.060) ?136irul i806V'GN jO W cc Appellant�� Planning (furnish one set of mailing labels for mailing) 30 n1jo File 90 :E 1W Z I Of &I APPEALS: Municipal Code Sec. 20,95.050(B) Appeal Fee: $340 pursuant to Resolution No. 2006 -4 adopted on 1 =1 M/ 13038 (Deposit funds with Cashier in Account #2700 -5000) -3 Zq �aPOR e CITY OF NEWPORT BEACH ADMINISTRATIVE SERVICES 3300 NEWPORT BLVD.. GtraoaN�� P.O. BOX 1768, NEWPORT BEACH, CA 92658.8915 RECEIVED BY: PERRYI TODAY'S DATE: 01/12/07 27005000 ZONING & SUBDIVISION F CASH PAID CHECK PAID $400.00 $, I. CASH RECEIPT RECEIPT NUMBER: 01000066661 PAYOR: LOW BRUCE REGISTER DATE: 01/16/07 TIME: 15:05:50 $340.00 --------------- - TOTAL DUE: $340.00 kpv V,. $ a ,A TENDERED CHANGE $400.00 $60.00 330 Item 9 Letter from Bruce Low dated February 28, 2007 331 SlAt4K A 3 32 Bruce I Low 41129th Street Newport Beach, California 92663 February 28, 2007 The City of Newport Beach Planning Department 3300 Newport Boulevard Newport Beach, California 92663 RECEIVED BY pIANNING DEPARTMENT Matt 05 2007 CHY OF NEWPORT BEACH Attn: City Council Re: Newport Beach Brewing Company (Use Permit No. 3485) Dear Honorable Council Members, This letter is in direct response to the portion of the Staff Report that addresses CONDITION NO. 6, which can be found on pages 6 and 7 of the Staff Report dated January 4, 2007. I disagree with Staffs conclusion that this condition (restriction of service area to 1,500 square feet) does not apply to weekends. As a matter of fact. The California Coastal Commission also believes the restriction applies seven days a week. The advice of the City Attorney's office to Staff "that enforcing conditions imposed by a different Jurisdiction is not advisable." This "low road" path will only force a showdown at the California Coastal Commission which will set back the effort of the City of Newport Beach to have the latitude to issue Coastal Development Permits through the LCP and LUP regulations. It is "an end" run to avoid the clear responsibility of the City of Newport Beach. It is a bad idea. Additionally, What specific parking study does the City Attorney's office refer to substantiate its 0 The Coastal Development Permit (# 5.93.137 dated 1.21.94) under SPEACIAL CONDITIONS 1. specifically states: "Prior to issuance of the Coastal Development permit, the applicant shall execute and record a deed restriction, in a form and content acceptable to the Executive Director, which shall provide that no more than 1,500 square feet of service area of the subject restaurant/brewpub shall be open before 5 p.m. This document shall run with the land, binding all successors and assigns, and shall be recorded free of prior liens." If this Special Condition intended to limit the restriction only Monday thru Friday, it would state so. Furthermore, the minutes of the September 27,1993 Newport Beach City Council meeting (volume 47 -page 253) also state; "reduce the allowable daytime "net public area" to 1,500 square feet before 5 p.m. "Again, if the Council intended to limit the restriction only Monday thru Friday, the record 333 would state so. The Intent of the Coastal Commission and City Council Is clear and needs no further speculative interpretation. Logic does not accompany Stairs analysis. An error was made in the preparation of the Use Permit and the Deed Restriction. And even if one mistake leads to another, it does not change the facts, the intent, or the record. For Staff to assume that "Coastal Commission Staff must have accepted this commitment as there is no evidence to the contrary and they issued the Coastal Development Permit shortly in early 1994." is nothing more than a speculative attempt to muddy the waters and skirt ownership of the obvious error in the preparation of the Use Permit and Deed Restriction. Staff has no specific knowledge of the California Coastal Commission's point of view regarding this issue. If Staff can simply decide all matters for themselves, then why bother with city public hearings or even the California Coastal Commission's directives? I am surprised that the Newport Beach Planning Staff has omitted further evidence of the Coastal Commissions intent and directive in the Coastal Development Permit. Planning Staff inquired to Mr. Karl Schwing of the California Coastal Commission pertaining to the intent of the Coastal Development Permit. Mr. Schwing responded in an email on or about July 26 2006 to Mr. Jim Campbell's inquiry. The following is Mr. Schwing's response: "James, I've consulted with the Planner, Meg Vaughn, who originally worked on this project and we've re- reviewed the file. We've concluded that the floor area limitation imposed by the Commission applies daily, not just Monday through Friday. I realize this determination may lead to some problems for the City and the restaurant. However, if there is a viable method of providing parking sufficient to support opening additional floor area space before 5 p.m. (without impacting public parking resources and public access), then the Brewing Company could consider applying for a permit amendment to implement that proposal " The record, the intent of the City Council and the California Coastal Commission, Including a recent re-clarification of the Coastal Commission's position, as well as, the available remedy for the Brewing Company are clear and specified. How will the California Coastal Commission be able to trust the City of Newport Beach if they can not even enforce a Coastal Development Permit issue as clear and simple as this one? The Brewing Company has been unfairly and incorrectly taking advantage of a mistake. This is "unjust enrichment." A doctrine that prevents persons from benefiting from the mistake of another. If a bank mistakenly deposits funds into your bank account, you must return them. The counsel for the Newport Beach Brewing Company hangs his hat on an alleged `Yule" that allows counsel to believe that Mr. Schwing is not authorized to renderthe above opinion on behalf of the California Coastal Commission. Counsel believes the Executive Director is the only person authorized to do so. However, Counsel does not take the initiative to request action from the Executive Director and for good reason. Counsel knows the Executive Directorwould promptly support the decision of Mr. Schwing. Counsel also knows that if the Newport Brewery applies for an amendment to its Coastal Development Permit that the California Coastal Commission will require a complete parking study to accompany the submission. A parking study thatwill surely demonstrate there Is not ample parking available to justify the amendment. � 3'i The intent of the California Coastal Commission was to prevent a conflict with the public's right to use valuable and limited public parking. The California Coastal Commission has been very vocal and firm regarding parking In the Cannery Village and they believe the parking situation is getting worse every year. The obvious mistake in the Use Permit and the ability of the Newport Brewing Company and the City of Newport Beach to Ignore the directives of the California Coastal Commission unfairly damages the rights of the public and causes Irreparable and continual harm. Why are we, as a city, afraid of compliance? Therefore, I request that this Council correct the error in the Use Permit, execute a new enforcement letter to the California Coastal Commission, order a new and correct Deed Restriction and enforce the service area limitation seven days a week, as designed and mandated by the California Coastal Commission and approved by the Newport Beach City Council. Require the Newport Beach Brewing Company to return the ill gotten accommodation for the use of the public. Sincerely, Bruce J. Low 335 Item 90 Letter from Bruce Low dated March 2, 2007 33(p BLAt4IC BLANK 337 Bruce I Low 411 291h Street Newport Beach, California 92663 March 2, 2007 City of Newport Beach RECEIVED BY PLANNING DEPARTMENT 3300 Newport Boulevard DEPARTMENT Newport Beach, California 92663 Attn: City Council MAR 05 2007 RE: Newport Beach Brewing Company CITY OF NEWPORT BEACH 2920 Newport Boulevard, Newport Beach Use Permit Number 3485 (9/13/1999) Dear Honorable Council Members: The hearing scheduled for March 13, 2007 is the result of i 1fz years of effort by the neighborhood pertaining to numerous complaints regarding the abuses which are regularly Inflicted upon the residents and businesspersons in the Cannery Village by the Newport Beach Brewing Company. We had hoped that Staff and the Planning Commission would be able understand to the needs of the Cannery Village and "reel In" the Newport Beach Brewing Company operation pursuant to the existing Use Permit. Unfortunately, Staff and the Planning Commission do not get it! Instead, we are heading towards even more latitude for our already abusive neighbor. With respect to your decisions regarding the Newport Beach Brewing Company, it will be necessary to determine "What exactly is this place? What is a "restaurant/brewpub "? What is it suppose to be? Is it a restaurant or a bar, nightclub? Condition No. 9 of the current "Use Permit' is a good starting place to define the operation. The 1999 version, which is applicable today, states "9. The operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant." Staff and the operator convinced a tired Commission to remove the word "prima rv" from condition No. 9. This is devastating and changes the "restaurant" approved use in the direction of a "bar" approved use. You can not allow this to happen. The Brewery is known as "The Newport Beach, give an Inch take a mile, Brewing Company. If you give in here, you will license a full blown bar, night club. There will be no turning back. Never! As a matter of fact, the City can surely expect the operator to make a further request to remove the condition (New Condition No. 26) that prevents the exclusion of persons under the age of 21 years by way of the proposed changes to Condition No. 10 that will state the "operation of a bar is permitted." Staff, innocently, has gone to great lengths in a subjective evaluation of the word or term " restaurant/brewpub" in an attempt to loosely define the word or term in a manner that creates an undisputable reason why the Newport Brewery may already be authorized to operate as a "bar ". The creation by Staff and the operator of a magic potion that allows the loose connection of food and alcohol service characteristics in combination as pre-authorization or authorization of a "bar" is faulty and wrong. An examination of Staffs methodology leads one to understand the conclusion is 3 3f� Illogical and speculative, at best. Staff's conclusion does not hold water and will cause irreparable harm to the neighborhood. Do not be misled! The definition of the term "restaurant/brewpub" is paramount in the operator's plan to defend its bar, night club operation and the operator's ability to continue and /or expand its operation without criticism or control from the residents or the city. As policy makers, you need to intervene. There Is not an available definition for the word "restaurant/brewpub." In order to attempt to define the term it is necessary to travel down the following two roads. Conduct an analysis of the terra using recognized principals within the English language an(/or an evaluation of the spirit and Intent of the document that houses the term. Recognized principals of the English language would allow one to identify characteristics of the word or term "restaurant/brewpub" by splitting the term into dominant and serviant characteristics. The word 'restaurant ", since it Is placed first in the word or term, is classified as dominant. The slash mark (/) creates a relationship between the two words, however the word "brewpub" would be classified as serviant. The serviant word will always carry less weight. An examination of the separated words In the word or term may be helpful. It would be acceptable to split the term or word and look for separate definitions to look for assistance. The following are the most specific definitions: restaurant an establishment where meals are served to customers brewpub a combination brewery and restaurant; beer is brewed for consumption on the premises and served along with food It is also noteworthy how the definitions supplied by Dictionary.com and WordNet also use the principal of dominant and serviant relationships. There are additional definitions of the words brew pub, however, since they are separated into two words they are far less pure. In this circumstance, the word or term "restaurant /brewpub" would best describe a restaurant that primarily serves meals (dominant) to customers accompanied by premise brewed beverages (serviant). Next, one would wish to examine the spirit and intent of the document that houses the word or term. This document would be the "Findings and Conditions for Approval Use Permit No. 3485 (Amended)" of Septembe►13,1999. It is clear that the spirit and intent of the document was to approve a restaurant and would characterize "restaurant/brewpub" in consistent terms with the writer's definition. It is strongly described in Conditions No's. 9 &:10. From the document, Condition No. "9. The operation of the brewery operation and the service of alcoholic beverages shall be ancillary to the primary food service operation" and 10. "shall not be construed as the approval f a ar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service hours." It is also important to further examine the spirit and intent throughout the rest of the document. Now does the language in the balance of the document help us understand the spirit and intent of the document? By way of example: The FINDINGS No. 2 reads apennits eating and drinking establishments." Eating first, drinking second. 331 / I- FINDINGS No. 5, bullet point 3, characterize the operation as a "restaurant business." FINDINGS b., bullet point 3, refers to the "alcohol license for a brewpub and the convenience of the public can be served by the sale of distilled spirits In a restaurant/brewpub setting." Here, a more complex term and more descriptive than brewpub. The addition of the "hard" alcohol was to augment the restaurant operation. Condition No. 15 uses the term "restaurant site" to describe the establishment. Condition No-16 uses the term "restaurant facility." Condition No. 17 reveals "restaurant business" as a reference. A more neutral term would have been used throughout the document such as "The establishment" which can be seen in Condition F. of the Standard City Requirements If the spirit and intent were actually to be more neutral. However, the neutral terms are virtually absent in the document. This is important to understand the spirit and intent. The specific wording and the terms present and not present in the document create overwhelming evidence to support a conclusion that the spirit and intent of the document clearly describe dealings with a restaurant. It would not be sound to derive a conflicting conclusion regarding the spirit and Intent of the document. Both methods of evaluation demonstrate faulty conclusions by the Planning Commission and Staff. Perhaps Staff could demonstrated way of several other existing Newport Beach Use Permits, that this language and interoretatio lis regular and common Staff can not demonstrate thJs point because the evidence does not exist! Therefore, Staff's interpretation that the term " restaurant/brewpub" implies that the City of Newport Beach approved a kind of a "bar" is nothing more than illogical speculation that defies acceptable principals within the English language and the spirit and Intent of the document. In this circumstance, and most often, the words really do speak for themselves and do not require speculative interpretation. So let's look at how the Staff Report and the operator are misleading. Condition No. 9, as currently written, Is clear and concise. It means that the establishment is a restaurant and shall maintain characteristics easily identifiable as a restaurant. Condition No. 10 states "The approval of this use permit is for a restaurant/brewpub and shall not be construed as the approval of a bar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service hours (food products sold or served Incidentally to the sale or service of alcoholic beverages shall not be deemed as constituting regular meal service) nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and /or dancing." The proposed changes to Condition No. 10 is a further license for a "bar' by way of the proposed wording changes; 'The accessory operation of a bar is permitted..." This change is catastrophic and can not be permitted. A recent adjustment, by the operator, now makes a full kitchen open and dinner menu available until 1 AM on Friday and Saturday. The notion that keeping the restaurant's kitchen open and making food available until 1 AM transforms the "bar" into a "restaurant" which suddenly meets the Staff's ill fated interpretation of the standard of Condition No. 10 is utterly ridiculous. The food service after 10 PM is clearly Incidental. The incidental food service is in violation of the Use Permit. Keeping the kitchen open is a thinly veiled feature that fools no one and does not meet the criteria of the written words or the spirit and intent of Condition No. 10. In fact, it Is insulting to any reasonable mind. �q This logic is as sound as an imposed operational condition that a swim school offer swim lessons to fish! The lessons may be available but there would be no demand. The swim lessons to fish would be classified as incidental to the swim school! One could try to read Into the condition that the only difference between a "bar" and a "restaurant" is the availability of food service. Regular meal service hours are not defined by the availability of food. This interpretation is a "reach" by the operator and Staff to meet Condition No. 10. It is better described as a "climb" for the operator and Staff. Regular food service is more reasonably interpreted by "demand" or percentage ratio for food products and not by availability! If there is no demand, or minimal sales, the food service is incidental. No operator would keep an expensive kitchen open with a full staff to make available a complete dinner menu when there is little or no demand, unless it was necessary to meet the conditions, or an interpretation thereof, of a Use Permit to stay open and be a "bar" while selling very profitable alcoholic beverages. Offering a dinner menu, while selling 90% alcohol, does not meet a reasonable standard of a restaurant. it is better described as a bar. It is also important to note that the words in Condition No. 10 "(food products sold or served incidentally to the sale or service of alcoholic beverages shall not be deemed as constituting regular meal service)" are specifically designed to require the necessity of "demand" for food service by way of sales to maintain and distinguish the restaurant characteristic and to prevent the phony ploy of keeping the kitchen open by " availabiliri"of food service to circumvent the characterization of a "bar, nightclub." This is exactly what the Newport Beach, give an inch take a mile, Brewing Company has been doing and continues to avoid the wording and the spirit and Intent of the Use Permit and thumb its nose at the neighborhood and the City of Newport Beach. It is in violation of the Use Permit, insulting to the neighborhood and the City Council must correct the violation and restore even handed compliance, promptly. The words in Condition No. 10 that are In parenthesis () are designed for clarification. They are in Condition No. 10 to prevent abuse. An available kitchen service does not create or satisfy the conditioned need for demand. There is no demand for food after 10 PM. There is no demand for food because after 10 PM is not "regular meal service hours ". Everyone has already had dinner! Plain and simple. The food service is incidental. It is clear that after 10 PM the Newport Beach Brewing Company is a full blown bar, night club! The establishment has admitted they sell 90% alcohol after 10PM. They admittedly, have 5 "bouncers ", check I.D. at the door and do not allow patrons that are under age 21• Are these facts characteristic of a restaurant or a bar? The standard should be: Does the establishment operate as a bar, night club or a restaurant? Period. If they operate as a "restaurant" they are within the Use Permit. If the operate as a "bar" they are not within their Use Permit. The establishment can not be convertible and choose to be one or the other, at will, depending upon opportunity. The establishment can not connect the two separate operations by simply making food available. If You were starting with a clean sheet of paper today would you permit a "bar" operation at this location? The answer is clearly. NO! So why give license to the bar through ambiguity? The inventive exercise of a cloudy "word blending" beginning with a "restaurant" mixed into a "restauranybrewpub" and "poof" turning into a "bar" is trickery. It is not what the operator represented in 1999, nor, what the City Council authorized, nor what the neighborhood should endure. Don't be fooled! Could anyone even imagine that the City Council in 1999 may have intended to convey; ]Cell, as long as the kitchen is open with a full menu you can do whatever you want until 1 AM. Sounds good to us. Let's vote. It is unimaginable. Staff knows better and so does this Council! 3-II Condition No. 9 need not and must not be changed. Condition No. 10 should be clarified and tightened to represent the spirit and intent of the Use Permit. The Newport Brewery should not be permitted, or In the least, appear to be permitted to operate as a "bar." Give an inch take a mile. The Cannery Village is a unique opportunity to foster mixed use characteristics in a seaside atmosphere. It is a very small area with a bright future! The Newport Brewery represents the past. Its business plan of over serving alcohol to kids may have been cool in the 70's. Yelling and screaming while urinating in the parking lot is a hobby that long ago had its day! To "rev up" this dinosaur will be a huge step backwards! The Newport Beach Brewing Company asked the City Council to be a restaurant that serves alcohol. They should be nothing more! So how do we accomplish this goal? Staff and the operator have offered very little in the way of solutions to the nuisance In the parking lot and the overall bar like characteristics. Counsel for the operator routinely threatens to sue if asked to yield on the tough questions. They refuse to curtail hours by closing at 11 PM like other restaurants and refuse to operate this business in a reasonable restaurant type setting. The character of the restaurent/brewpub is one of "Jeckel and Hyde." By day, for the most part, the operation has characteristics of a restaurant. On Thursday, Friday and Saturday nights and Sunday the operation Is obviously a "bar." The Newport Brewery has Intentionally painted Itself into an operation that appears to be a moving target that can not be easily regulated. However, the distinction that Is easy to understand is that at a "restaurant ", patrons are primarily seated and at a "bar," patrons are primarily standing. The operation has previously submitted a floor plan. The facility also has limited restroom facilities that are a contributing factor to the constant urination In the parking lot and surrounding structures. By limiting the occupancy and requiring the Fire Department to enforce the patron load, the City could bring about a change in character and move this "bar" towards a 'restaurant." In the alternative or conjunctively, the City could require food service at a 50% ratio to alcohol sales from 10 PM to 1 AM. These concepts would be easy to regulate and the necessity for expensive enforcement measures and complicated conditions, that can never be enforced, would be eliminated. As a matter of fact, per the directives of the California Coastal Commission and the Alcoholic Beverage Control, this is precisely how the operation is regulated during the daytime. Just last month , and after the Newport Brewery hearing, the Planning Commission Imposed, and the applicant agreed, to a condition that the "Yard house", an establishment that plans to operate in Fashion Island, be held to a percentage ratio of alcohol to food sales each and every hour of the operation. The same condition can be, and should be, imposed on the Newport Brewery. By limiting the alcohol sales as a percentage of the food sales and/or patron load it may be possible to actually dine in the "restaurant/brewpub" after dark. The practical solutions are available and before you. Have the courage to demonstrate the leadership that the voting population of the City of Newport Beach believes you have! Sincerely, Bruce J. Low � 4 -2-- Revised Public Notice Appeal of an Amendment of Use Permit No. 3485 Newport Beach Brewing Company (PA2006 -077) NOTICE IS HEREBY GIVEN that the City Council of the City of Newport Beach will hold a public hearing on an appeal of the Planning Commission's approval of an amendment of Use Permit No. 3485 issued to the Newport Beach Brewing Company. The restaurant/brewpub is located at 2920 Newport Boulevard and is within the Cannery Village /McFadden Square Specific Area Plan. The Newport Beach Brewing Company has operated a restaurant/brewpub pursuant to Use Permit No. 3485 since 1994. The Use Permit was issued by the City in 1993 to operate a restaurant/brewpub and it was subsequently amended in 1999 to allow the sale and on -site consumption of distilled spirits. Due to complaints received alleging that the use was being operated in violation of the conditions of approval, the Planning Commission conducted a review of the Use Permit pursuant to the conditions of approval and applicable sections of the Municipal Code. At the conclusion of the public review process, the Planning Commission modified several conditions of approval with the intent that the changes would address the complaints. An appeal of this decision was duly filed requesting the review and modification of the amendment of the conditions of approval adopted by the Planning Commission. The review, modification or enforcement of this Use Permit is not defined as a "project" and therefore not subject to the requirements of the California Environmental Quality Act. NOTICE IS HEREBY FURTHER GIVEN that said public hearing will be held on March 27, 2007, at the hour of 7:00 p.m. in the City Council Chambers (Building A) at 3300 Newport Boulevard, Newport Beach, Califomia, at which time and place any and all persons interested may appear and be hear thereon. If you challenge this project in court, you may be limited to raising only those issues you ' or someone else raised at the public hearing (described in this notice) or in written correspondence delivered to the City, at, or prior to, the public hearing. For information call (949) 644 -3232. R LaVonne M. Harkless, City Clerk tp of Newport Beach 14 IPH �f E ce � 3191 in Impression antibourrage et 5 s6chage rapide www.averycom 1 &F3 AVERY® 5160® Utilisez le gabarit 51600 1- 800-GO -AVERY THIRTY FIRST STREET LC NIAVAIL 0 CITY OF NEWPORT CH 3300 NEWPOR VD NEWPORT CH,CA92663 29 STREET LLC PARTNERS 429 30TH ST NEWPORT BEACH, CA 92663 JACKSONIJACKSON 420 LLC MINER PENINSULA RETAIL PARTNERS LLC 510 31 ST ST #A 365 VIA LIDO SOLID 415 29TH ST NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 CATELLUS DEVELOPMENT CORP CITY OF NEWPOR EACH GLASSMAN 12501 IMPERIAL HWY #550 PO BOX 1768 215 30TH ST NORWALK, CA 90650 NEWPO EACH, CA 92658 NEWPORT BEACH, CA 92663 29 STREET LLC PARTNERS 29 STREET LLC P NERS POLIQUIN FAMILY LTD 429 30TH ST 429 30TH ST 18951 NEWTON AVE NEWPORT BEACH, CA 92663 NEWPO EACH, CA 92663 SANTA ANA, CA 92705 BARRY FAMILY INC HAMPSHIRE PROPERTIES LLC 214 30TH ST LLC 605 VIA LIDO SOLID 417 31 ST ST 214 30TH ST #A NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 214 30TH ST LLC THIRTY FIRST STREET LLC PORT PROPE S INC 4750 VON KARMAN AVE 415 30TH ST PO BOX 48 NEWPORT BEACH, CA 92660 NEWPORT BEACH, CA 92663 LAGUN EACH, CA 92652 PORT PROPERTIES INC BATLEY FAMILY TRUST SALVO DESIGN GROUP INC PO BOX 485 PO BOX 15 2817 NEWPORT BLVD LAGUNA BEACH, CA 92652 NEWP BEACH, CA 92659 NEWPORT BEACH, CA 92663 BATLEY FAMILY TRUST BATLEY FAMILY T HOSMAN PROPERTIES PO BOX 15845 PO BOX 158 129 W WILSON ST #100 NEWPORT BEACH, CA 92659 NEWPO BEACH, CA 92659 COSTA MESA, CA 92627 MARVIN P ADLER RENE ANDRE BARGE RENE A BARqE 30123 SKIPPERS WAY DR 408 31ST ST 408 31ST CANYON LAKE, CA 92587 NEWPORT BEACH, CA 92663 NEWP T BEACH, CA 92663 THOMAS BLUROCK FINE ARTS BUCK FINE ARTS BUC 401 30TH ST 25200 LA PAZ RD #201 252001 P D #201 NEWPORT BEACH, CA 92663 LAGUNA HILLS, CA 92653 LAGUNA LLS, CA 92653 At13AV-O9008-L ®0915 uvwwu okeAV ash 009LS ®J1UMV worAnAeumm Buwjpd ewA e6pnws pue wer Impression antibourrage et b sgchage rapide wwwAverycom '2- of-3 A��Y® 5160® Utilisez le gabarit 51600 1- 800-60.AVERY MICHAEL J JR BURNS FRANCES A BURY DINO & ARDENIA CAPANNELLI 216 -1/2 30TH ST 106 VIA UNDINE 430 31 ST ST NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 MICHAEL T & ROSEMARY K CARSON MERIAM CASE BRYAN M CHONG 3424 VIA OPORTO #204 423 31 ST ST 131 PECAN LN NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 FOUNTAIN VALLEY, CA 92708 THOMAS & JOAN DIXON 428 31 ST ST NEWPORT BEACH, CA 92663 MARK S FAULCONER 411 30TH ST NEWPORT BEACH, CA 92663 SUZANNE J FINAMORE 41931 STST#A NEWPORT BEACH, CA 92663 GREG & DEBORAH V GRISAMORE 412 31ST ST NEWPORT BEACH, CA 92663 WILLIAM R HANSEN 2745 GLENDOWER AVE LOS ANGELES, CA 90027 KATSUMI IMOTO 552 JADE TREE DR MONTEREY PARK, CA 91754 MARY LEE 219 29TH ST NEWPORT BEACH, CA 92663 FRANK C MARSHALL PO BOX 540 NEWPORT BEACH, CA 92661 ROBERT D FAINBARG 14041 LIVINGSTON ST TUSTIN, CA 92780 JOEL F FEITLER 407 30TH ST #A NEWPORT BEACH, CA 92663 DAVID FORTINI 222 30TH ST NEWPORT BEACH, CA 92663 DAVID L HAMMOND 10 CALLE CABRILLO FOOTHILL RANCH, CA 92610 RAYMOND HAWS 223 CASTELLANA N PALM DESERT, CA 92260 THOMAS E KEEFER 433 OGLE CIR COSTA MESA, CA 92627 MARY EILEEN 219 29TH NEWP T BEACH, CA 92663 RONALD J MILLAR PO BOX 1162 NEWPORT BEACH, CA 92659 A113 V-09'008-6 ROBERT D FAIN RG 14041 LIVIN ON ST TUSTIN, 92780 ARNOLD FEUERSTEIN 129 W WILSON ST #100 COSTA MESA, CA 92627 JENNY M GILCHRIST 41031 STST#A NEWPORT BEACH, CA 92663 DAVID L HAMMO 10 CAL C ILLO FOOT RANCH, CA 92610 ROBERT SCOTT HUSBANDS 1173 IRVINE BLVD TUSTIN, CA 92780 CYNTHIA KLANIAN PO BOX 8092 NEWPORT BEACH, CA 92658 BRUCE JLOW 411 29TH ST NEWPORT BEACH, CA 92663 THERESA CAGNEY MORRISON 23 CORPORATE PLAZA DR #205 NEWPORT BEACH, CA 92660 oats 31Vum e+eAv esn impression antibourrage et a s6chage rapide Utilisez le gabarit 51600 THERESA CAGNEY M RRISON 23 CORPORATE P DR #205 NEWPORT B H, CA 92660 VALERIE V H NGUYEN 2822 NEWPORT BLVD #B NEWPORT BEACH, CA 92663 SAMMI A NIELSEN 220 30TH ST NEWPORT BEACH, CA 92663 BRIAN WESLEY RAY 425 30TH ST #10 NEWPORT BEACH, CA 92663 MARY A ROUSE 522 SEAWARD RD CORONA DEL MAR, CA 92625 FUNDING SOUTHERN 419 30TH ST NEWPORT BEACH, CA 92663 KEVIN D WEEDA 427 30TH ST NEWPORT BEACH, CA 92663 MARY H WILLIAMSON 426 31 ST ST NEWPORT BEACH, CA 92663 its oAMMV wwwaverycom 1.8004"VERY THERESA CAGNW MORRISON 23 CORPOR PLAZA DR #205 NEWP BEACH, CA 92660 STEVEN C NICHOLSON 419 EL MODENA AVE NEWPORT BEACH, CA 92663 BHUPESH PARIKH 427 W COLORADO ST #201 GLENDALE, CA 91204 SCOTTLROTH 217 29TH ST NEWPORT BEACH, CA 92663 LAWRENCE C SCHNACK 3404 BRANDYWINE ST SAN DIEGO, CA 92117 V C INTER VIVOS TAORMINA PO BOX 485 CORONA DEL MAR, CA 92625 JOHN L WESTREM 1006 E BALBOA BLVD NEWPORT BEACH, CA 92661 0. y92O NewP° 81vot . 3 ��3 AVERY®s16o® RESIDENCE NEWPORT 2824 NEWPORT BLVD NEWPORT BEACH, CA 92663 STACY NIELSEN 220 112 30TH ST NEWPORT BEACH, CA 92663 JAKS P PHILLIPS 1345 POTTER BLVD BAY SHORE, NY 11706 KENNETH & MARY ROUSE 522 SEAWARD RD CORONA DEL MAR, CA 92625 JON A SHEPARDSON PO BOX 2971 NEWPORT BEACH, CA 92659 MARY ANNE TURLEY -EMETT 25 BAY IS NEWPORT BEACH, CA 92661 DREW M WETHERHOLT 217 30TH ST NEWPORT BEACH, CA 92663 St'�ao^ti— Mife/� 61911 Zrv,-"d co d.' .. 1So fLmm a mu aMnu.n n.m ..me Page 1 of 4 Stephen Mlles From: Stephen Miles [smiles @mileslawgroup.com] Sent: Tuesday, March 06, 2007 6:22 AM To: 'parandigm @aol.com' Subject: March 13, 2007 NBBC Use Permit Hearing Mayor Rosansky, My name is Stephen Miles and I am a land use attorney representing the Newport Beach Brewing Company. As you may know, for several months the City of Newport Beach has been investigating the operations of the Newport Beach Brewing Company ( "NBBC ") and determined that there was a need to modify certain conditions of the Use Permit that NBBC has held for the past 12 years. The General Manager of NBBC, Mr. Jerry Kolbly, and I would appreciate the opportunity to meet with you over the next week and prior to the March 13, 2007, hearing regarding the appeal of the Planning Commission's unanimous approval of a modified Use Permit for NBBC. Tentatively, we would be able to meet with you for breakfast or lunch if that would be your preference. In preparation for our meeting, I would like to provide you with a little bit of background and outline what NBBC will be asking for at the hearing. While NBBC is not the Appellant, the position of the Brewing Company has remained that the Use Permit modifications are voluntary and that the City does not have the authority, under the circumstances and evidence presented by the City, to unilaterally modify the conditions. At the Planning Commission hearing, NBBC was asked to agree to condition modifications beyond those that they had worked out with City staff prior to the hearing. As a result, NBBC has a concern with one of the modified conditions approved by the Planning Commission. In addition, NBBC has one modest request that they believe is both fair and appropriate given the operational changes that NBBC has implemented thus far. BACKGROUND While somewhat unclear, staff claimed the basis for the initial investigation was a complaint lodged by the "Cannery Village Concerned" — an entity claiming to represent numerous residents of the Cannery Village Lofts constructed adjacent to the Brewing Company. To make a long story short, the Newport Beach Police Investigation Report (the "Report') confirming the absence of any violations of the Use Permit conditions is set forth as Attachment 1 to the NBBC memo submitted to the Planning Commission (attached hereto). The Report, along with several testimonials provided by the Police Department, further confirms that the amount of Police incidents caused by or associated with NBBC's operations is far less than similar establishments in the area and is undoubtedly reasonable under the circumstances. The Report also confirms that there was no form of increase in incidents (actual, reported, or otherwise) at or associated with NBBC that would even justify an investigation. Through multiple public hearings and several months of working with City Staff and the neighborhood, NBBC has confirmed several matters. First, no legitimate complaint ever existed that warranted a review and substantial modification of the NBBC Use Permit. Nevertheless, NBBC volunteered to make modifications to their business operations to improve their operations and to simply be a good neighbor. NBBC's voluntary actions were in good faith and at a significant cost. Second, a handful of individuals claiming to represent the Cannery Village are the real complainants in this matter, rather than the fictitious "Cannery Village Concerned." Namely, Bruce Low, a loft owner, and Kevin Weeda, the appellant and developer of the Cannery Village Lofts, are the two individuals that have continued to oppose NBBC's historical operations and have claimed to represent the Cannery Village community. Noting that complaints and correspondence were being submitted by Cannery Village Concerned to the City unsigned, the City (Planning Commission and Staff) asked Mr. Low and Mr. Weeda to verify who they represent and to have an individual sign future correspondences if they are to be considered by the City. Mr. Low and Mr. Weeda never verified their alleged representation of the Cannery Village residents. In fact, Mr. Low didn't even testify at the January 2007 Planning Commission hearing and Mr. Weeda wasn't present at the hearing. While Mr. Weeda wasn't present, didn't testify, and didn't lodge any information that was disclosed to the public or Planning Commission (to enable the public or Commission to even know what his interest or concern was as of January 2007), Mr. Weeda was granted the ability to appeal the matter to the City Council. ird, the noise complaints lodged by Kevin Weeda and his colleagues were merely a pretext for the furtherance 3/27/2007 Page 2 of 4 of Mr. Weeda's financial interest in acquiring the NBBC property for future mixed use loft development. Mr. Weeda has made several attempts to purchase the NBBC property to further his financial interest Over a two year period the owner of the NBBC property (who also owned the Cannery Village Loft property sold to Mr. Weeda) has informed Mr. Weeda that the NBBC property is subject to a long term lease and not for sale. Fourth, the opposition's pretext is intended to prohibit NBBC and the City from working collaboratively together to address potential neighborhood concerns. Regardless of the concerns raised or what NBBC has voluntarily implemented with the City (e.g., aesthetic treatment and enclosure of the parking lot trash container; line relocation to eliminate noise perceived by residents; added security and security planning beyond NBBC's hours of operation) the opposition remains. From the January 2007 hearing, the opposition clearly illustrated that nothing the City and NBBC voluntarily implemented would appease them. The opposition merely continues to equivocate over their concerns. For example: Action: NBBC relocates the line, eliminates potential noise, and the Report verifies the low and reasonable noise levels of NBBC's operations before and after the line relocation. Result The opposition accuses the Police Department of a faulty investigation. At the January 2007 hearing, the Police Department testified that the Report was thorough and NBBC confirmed its open door policy for City inquiries. Action: NBBC relocates the line to eliminate potential noise. Result The opposition waffles on their support of line relocation and claims that the line relocation results in safety concerns along.the front of the building. NBBC and City staff previously worked together on the line relocation (which involved significant tenant improvements), to assure that the relocated line would not result in any safety hazards. Action: NBBC hires additional security and extends security hours beyond NBBC's hours of operation to address potential noise impacts and altercations in the parking lots caused by patrons of other establishments in the area that close at 2:00 a.m. Result: The opposition testifies that NBBC's security policy (prohibiting minors unaccompanied by a parent from entering during late hours) is too "bar - like." The Planning Commission requires a condition that forces NBBC to admit patrons against their sound business judgment and in spite of NBBC's willingness to provide security to assist with potential neighborhood impacts caused by the City's unsecured Municipal Parking Lot. REQUESTED ACTION BY THE CITY COUNCIL 1) NBBC's Carding Policy NBBC holds both a Type 23 and Type 75 Alcoholic Beverage Control license. The Type 75 license permits the sale of wine, beer, and distilled spirits associated with the restaurant and brewpub. In 1999, the City Council amended the Use Permit to allow operation with a Type 75 license and reduced the Restaurant and Brewpub hours of operation for Sunday through Thursday (reduced from 11:30 p.m. to 11:00 p.m.). The lion's share of the Use Permit conditions remained unaffected from the original approval by the City Council in 1993. Regardless of the type of license held, NBBC has always operated under a policy that a conservative approach to dealing with underage patrons is the safest approach. Under the adage of "better safe than sorry," when NBBC is crowded during the later hours of the evening (typically on weekends), NBBC Security will card patrons at the door and prohibit minors that are unaccompanied by a parent from entering the Restaurant/Brewpub. Based on: (1) the Report; (2) further Police Department testimony; (3) direction from the State Alcohol Training Program (LEADS training) that NBBC employees and owners completed per the mandate of the City; (4) recent direction given by the Police Department to restaurant owners at stakeholder meetings sponsored by the City, and; (5) evidence that other restaurants in Newport Beach and other restaurant/brewpubs in Southern California operate under similar policies, City staff agreed with the wisdom behind NBBC's policy and did not recommend modifying the Use Permit to affect their Carding Policy. At the Planning Commission hearing, based upon a theory that the Carding Policy is too "bar4lke," the Planning Commission forced NBBC to craft a condition (from the podium), that would permit minors to enter the Restaurant/Brewpub during all hours of operation. The condition essentially states that NBBC cannot prohibit a minor from entering the Restaurant/Brewpub solely based on age. NBBC would prefer to remain realistic on the issue and would ask that the City Council rescind the modification and permit NBBC to operate its business as it has done so for 12 years in a manner that does not add to the risk of underage drinking and driving. The entire basis for the Use Permit review was an unfounded allegation of unreasonable line noise, parking lot noise, and 3/27/2007 Page 3 of 4 boisterous activities from both the NBBC parking lot and adjacent Municipal Parking Lot. NBBC addressed the potential for noise from the rear of its building by relocating the line to the front of the building. The Report otherwise found that no unreasonable noise exists at NBBC. NBBC is also volunteering its security beyond its current hours of operation to observe and respond to any parking lot issues that may arise from patrons of other restaurants and bars that close several hours after NBBC closes. Any legitimate noise concern has been addressed and rectified and now noise has a far lesser potential to be an issue for the community. NBBC's Carding Policy is not related to a legitimate concern of the neighborhood. In contrast, modification of the Carding Policy will only increase NBBC's liability associated with having to police unaccompanied minors in a crowded Restaurant/Brewpub. 2) Extended Weekday Hours NBBC closes at 11:00 p.m. on weekdays (Monday through Thursdays). In contrast, numerous bars and restaurants in the immediate area, that use both NBBC's parking lot and the adjacent unsecured Municipal Parking Lot, close at 2:00 a.m. everyday. Specifically, Malarkey's, Cassidy's, Rudy's, Woody's Wharf, Blue Beet and Newport Kantina are permitted to operate until 2:00 a.m. everyday. NBBC would respectfully request, with the voluntary operational changes that have already been implemented by the Restaurant/Brewpub, that their weekday hours of operation be extended to 11:30 p.m. — a reinstatement of the hours of operation that the City Council approved in 1993 without the several operational improvements presently implemented by NBBC. Practically, an additionally 30 minutes on weekdays will have no affect on the existing physical conditions for the mixed -use neighborhood. Overall, the conditions will remain greatly improved through NBBC's voluntary measures that have eliminated the potential for noise and added security to the parking lots. Until the various establishments in the area, who's patrons use the Municipal Parking Lot (and NBBC's parking lot well after NBBC is closed), are required to close well before 2:00 a.m., extending NBBC's weekday hours of operation to 11:30 p.m. is inconsequential. Financially, however, with NBBC assuming significant new costs with the revised Use Permit conditions, the additional 30 minutes of operation Monday through Thursday would allow NBBC to recoup those costs in sales revenue. To remain completely reasonable and fair about the issue, NBBC respectfully proposes a condition that would keep NBBC consistent with the other establishments in the area. For example, the hours of operation condition could be drafted so that the additional 30 minutes would expire when any other existing establishment with a 2:00 a.m. weekday closing is required to close at 11:00 p.m. CONCLUSION I sincerely hope that you will see the values of the many voluntary measures that NBBC has implemented to address any real aesthetic, noise, or security concern raised by the community. NBBC understands that their interest is well served by being a great neighbor. Moreover, NBBC has a local and National reputation to uphold with respect to its operations, the quality of food it serves, and the award - winning quality of its hand - crafted beers. NBBC wants to get to the next chapter of a long- standing, mutually beneficial relationship with the City. Unfortunately, throughout the City's Use Permit review process, no good deed went unpunished. NBBC firmly believes that the City was initially asked to investigate NBBC's operations more so because of the financial interest of a few persuasive individuals and less so because of potential negative impacts to the neighbors cause by NBBC's operations. As a result, the Planning Commission decided to exercise NBBC's pure business judgment by instituting its own operational policy concerning the admittance of patrons. More importantly, however, NBBC feels that the Planning Commission's direction is unsound in light of the grave importance of our Nation's public policy to prohibit underage drinking. What benefit does the Planning Commission's approach provide the City and is it worth potentially exposing both NBBC and the City to additional liability based on the imposed regulation? As NBBC cannot see any benefit to the condition, NBBC respectfully requests the City Council's rescission of the condition. In addition, from an equitable and practical perspective, NBBC respectfully seeks the reinstatement of the 11:30 p.m. closing time for weekdays. The result of the extension is a total of two hours of operation per week that will permit NBBC to recoup costs associated with the increased operational costs of the modified Use Permit conditions. Thank you for your consideration of this information and NBBC's requests. We look forward to the opportunity to meet with you and to discuss these issues further. Take care, —Steve Stephen M. Miles, Esq. 3/27/2007 Page 4 of 4 MILES • LAW GROUP P.C. 9911 Irvine Center Drive, Suite 150 Irvine, CA 92618 office 949.788.1425 mobile 714.393.3389 fax 949.788.1991 SMiles@MilesLawGroup.com IMPORTANT: The information contained in this e-mail is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney - client communication and, as such, is PRIVILEGED & CONFIDENTIAL. If the reader of this message is not the intended recipient or an agent responsible for delivering R to the intended recipient, you are hereby notified that you have received this document (and any attachments) in error and that any review, dissemination, distribution or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail and deliver the original message. To ensure compliance with requirements imposed by the IRS, we inform you that (a) any U.S. tax advice in this communication (including attachments) is limited to the one or more U.S. tax issues addressed herein; (b) additional issues may exist that could affect the U.S. tax treatment of the matter addressed below; (c) this advice does not consider or provide a conclusion with respect to any such additional Issues; (d) any U.S. tax advice contained in this communication (including attachments) is not intended or written to be used, and cannot be used, for the purpose of promoting, marketing or recommending to another party any transaction or matter addressed herein, and (e) with respect to any U.S. tax issues outside the limited scope of this advice, and U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of avoiding tax- related penalties under the Internal revenue Code. 3/27/2007 Page 1 of 4 Stephen Miles From: Stephen Miles [smiles@mileslawgroup.com] Sent: Tuesday, March 06, 2007 6:25 AM To: 'edselich@adelphia.net' Subject: March 13, 2007 NBBC Use Permit Hearing Mayor Pro Tern Selich, My name is Stephen Miles and I am a land use attorney representing the Newport Beach Brewing Company. As you may know, for several months the City of Newport Beach has been investigating the operations of the Newport Beach Brewing Company ( "NBBC ") and determined that there was a need to modify certain conditions of the Use Permit that NBBC has held for the past 12 years. The General Manager of NBBC, Mr. Jerry Kolbly, and I would appreciate the opportunity to meet with you over the next week and prior to the March 13, 2007, hearing regarding the appeal of the Planning Commission's unanimous approval of a modified Use Permit for NBBC. Tentatively, we would be able to meet with you for breakfast or lunch if that would be your preference. In preparation for our meeting, I would like to provide you with a little bit of background and outline what NBBC will be asking for at the hearing. While NBBC is not the Appellant, the position of the Brewing Company has remained that the Use Permit modifications are voluntary and that the City does not have the authority, under the circumstances and evidence presented by the City, to unilaterally modify the conditions. At the Planning Commission hearing, NBBC was asked to agree to condition modifications beyond those that they had worked out with City staff prior to the hearing. As a result, NBBC has a concern with one of the modified conditions approved by the Planning Commission. In addition, NBBC has one modest request that they believe is both fair and appropriate given the operational changes that NBBC has implemented thus far. BACKGROUND While somewhat unclear, staff claimed the basis for the initial investigation was a complaint lodged by the "Cannery Village Concerned" — an entity claiming to represent numerous residents of the Cannery Village Lofts constructed adjacent to the Brewing Company. To make a long story short, the Newport Beach Police Investigation Report (the "Report") confirming the absence of any violations of the Use Permit conditions is set forth as Attachment 1 to the NBBC memo submitted to the Planning Commission (attached hereto). The Report, along with several testimonials provided by the Police Department, further confirms that the amount of Police incidents caused by or associated with NBBC's operations is far less than similar establishments in the area and is undoubtedly reasonable under the circumstances. The Report also confirms that there was no form of increase in incidents (actual, reported, or otherwise) at or associated with NBBC that would even justify an investigation. Through multiple public hearings and several months of working with City Staff and the neighborhood, NBBC has confirmed several matters. First, no legitimate complaint ever existed that warranted a review and substantial modification of the NBBC Use Permit. Nevertheless, NBBC volunteered to make modifications to their business operations to improve their operations and to simply be a good neighbor. NBBC's voluntary actions were in good faith and at a significant cost. Second, a handful of individuals claiming to represent the Cannery Village are the real complainants in this matter, rather than the fictitious "Cannery Village Concerned." Namely, Bruce Low, a loft owner, and Kevin Weeda, the appellant and developer of the Cannery Village Lofts, are the two individuals that have continued to oppose NBBC's historical operations and have claimed to represent the Cannery Village community. Noting that complaints and correspondence were being submitted by Cannery Village Concerned to the City unsigned, the City (Planning Commission and Staff) asked Mr. Low and Mr. Weeda to verify who they represent and to have an individual sign future correspondences if they are to be considered by the City. Mr. Low and Mr. Weeda never verified their alleged representation of the Cannery Village residents. In fact, Mr. Low didn't even testify at the January 2007 Planning Commission hearing and Mr. Weeda wasn't present at the hearing. While Mr. Weeda wasn't present, didn't testify, and didn't lodge any information that was disclosed to the public or Planning Commission (to enable the public or Commission to even know what his interest or concern was as of January 2007), Mr. Weeda was granted the ability to appeal the matter to the City Council. Third, the noise complaints lodged by Kevin Weeda and his colleagues were merely a pretext for the furtherance 3/27/2007 Page 2 of 4 of Mr. Weeda's financial interest in acquiring the NBBC property for future mixed use loft development. Mr. Weeda has made several attempts to purchase the NBBC property to further his financial interest. Over a two year period the owner of the NBBC property (who also owned the Cannery Village Loft property sold to Mr. Weeda) has informed Mr. Weeda that the NBBC property is subject to a long term lease and not for sale. Fourth, the opposition's pretext is intended to prohibit NBBC and the City from working collaboratively together to address potential neighborhood concerns. Regardless of the concerns raised or what NBBC has voluntarily implemented with the City (e.g., aesthetic treatment and enclosure of the parking lot trash container; line . relocation to eliminate noise perceived by residents; added security and security planning beyond NBBC's hours of operation) the opposition remains. From the January 2007 hearing, the opposition clearly illustrated that nothing the City and NBBC voluntarily implemented would appease them. The opposition merely continues to equivocate over their concerns. For example: Action: NBBC relocates the line, eliminates potential noise, and the Report verifies the low and reasonable noise levels of NBBC's operations before and after the line relocation. Result: The opposition accuses the Police Department of a faulty investigation. At the January 2007 hearing, the Police Department testified that the Report was thorough and NBBC confirmed its open door policy for City inquiries. Action: NBBC relocates the line to eliminate potential noise. Result: The opposition waffles on their support of line relocation and claims that the line relocation results in safety concerns along the front of the building. NBBC and City staff previously worked together on the line relocation (which involved significant tenant improvements), to assure that the relocated line would not result in any safety hazards. Action: NBBC hires additional security and extends security hours beyond NBBC's hours of operation to address potential noise impacts and altercations in the parking lots caused by patrons of other establishments in the area that close at 2:00 a.m. Result The opposition testifies that NBBC's security policy (prohibiting minors unaccompanied by a parent from entering during late hours) is too "bar - like." The Planning Commission requires a condition that forces NBBC to admit patrons against their sound business judgment and in spite of NBBC's willingness to provide security to assist with potential neighborhood impacts caused by the City's unsecured Municipal Parking Lot. REQUESTED ACTION BY THE CITY COUNCIL 1) NBBC's Carding Policy NBBC holds both a Type 23 and Type 75 Alcoholic Beverage Control license. The Type 75 license permits the sale of wine, beer, and distilled spirits associated with the restaurant and brewpub. In 1999, the City Council amended the Use Permit to allow operation with a Type 75 license and reduced the Restaurant and Brewpub hours of operation for Sunday through Thursday (reduced from 11:30 p.m. to 11:00 p.m.). The lion's share of the Use Permit conditions remained unaffected from the original approval by the City Council in 1993. Regardless of the type of license held, NBBC has always operated under a policy that a conservative approach to dealing with underage patrons is the safest approach. Under the adage of "better safe than sorry," when NBBC is crowded during the later hours of the evening (typically on weekends), NBBC Security will card patrons at the door and prohibit minors that are unaccompanied by a parent from entering the Restaurant/Brewpub. Based on: (1) the Report; (2) further Police Department testimony; (3) direction from the State Alcohol Training Program (LEADS training) that NBBC employees and owners completed per the mandate of the City; (4) recent direction given by the Police Department to restaurant owners at stakeholder meetings sponsored by the City, and; (5) evidence that other restaurants in Newport Beach and other restaurant/brewpubs in Southern California operate under similar policies, City staff agreed with the wisdom behind NBBC's policy and did not recommend modifying the Use Permit to affect their Carding Policy. At the Planning Commission hearing, based upon a theory that the Carding Policy is too "bar- like," the Planning Commission forced NBBC to craft a condition (from the podium), that would permit minors to enter the Restaurant/Brewpub during all hours of operation. The condition essentially states that NBBC cannot prohibit a minor from entering the Restaurant/Brewpub solely based on age. NBBC would prefer to remain realistic on the issue and would ask that the City Council rescind the modification and permit NBBC to operate its business as it has done so for 12 years in a manner that does not add to the risk of underage drinking and driving. The entire basis for the Use Permit review was an unfounded allegation of unreasonable line noise, parking lot noise, and 3/27/2007 Page 3 of 4 boisterous activities from both the NBBC parking lot and adjacent Municipal Parking Lot. NBBC addressed the potential for noise from the rear of its building by relocating the line to the front of the building. The Report otherwise found that no unreasonable noise exists at NBBC. NBBC is also volunteering its security beyond its current hours of operation to observe and respond to any parking lot issues that may arise from patrons of other restaurants and bars that close several hours after NBBC closes. Any legitimate noise concern has been addressed and rectified and now noise has a far lesser potential to be an issue for the community. NBBC's Carding Policy is not related to a legitimate concern of the neighborhood. In contrast, modification of the Carding Policy will only increase NBBC's liability associated with having to police unaccompanied minors in a crowded RestaurantIBrewpub. 2) Extended Weekday Hours NBBC closes at 11:00 p.m. on weekdays (Monday through Thursdays). In contrast, numerous bars and restaurants in the immediate area, that use both NBBC's parking lot and the adjacent unsecured Municipal Parking Lot, close at 2:00 a.m. everyday. Specifically, Malarkey's, Cassidy's, Rudy's, Woody's Wharf, Blue Beet and Newport Kantina are permitted to operate until 2:00 a.m. everyday. NBBC would respectfully request, with the voluntary operational changes that have already been implemented by the Restaurant/Brewpub, that their weekday hours of operation be extended to 11:30 p.m. — a reinstatement of the hours of operation that the City Council approved in 1993 without the several operational improvements presently implemented by NBBC. Practically, an additionally 30 minutes on weekdays will have no affect on the existing physical conditions for the mixed -use neighborhood. Overall, the conditions will remain greatly improved through NBBC's voluntary measures that have eliminated the potential for noise and added security to the parking lots. Until the various establishments in the area, who's patrons use the Municipal Parking Lot (and NSBC's parking lot well after NBBC is closed), are required to close well before 2:00 a.m., extending NBBC's weekday hours of operation to 11:30 p.m. is inconsequential. Financially, however, with NBBC assuming significant new costs with the revised Use Permit conditions, the additional 30 minutes of operation Monday through Thursday would allow NBBC to recoup those costs in sales revenue. To remain completely reasonable and fair about the issue, NBBC respectfully proposes a condition that would keep NBBC consistent with the other establishments in the area. For example, the hours of operation condition could be drafted so that the additional 30 minutes would expire when any other existing establishment with a 2:00 a.m. weekday closing is required to close at 11:00 p.m. CONCLUSION I sincerely hope that you will see the values of the many voluntary measures that NBBC has implemented to address any real aesthetic, noise, or security concern raised by the community. NBBC understands that their interest is well served by being a great neighbor. Moreover, NBBC has a local and National reputation to uphold with respect to its operations, the quality of food it serves, and the award- winning quality of its hand - crafted beers. NBBC wants to get to the next chapter of a long- standing, mutually beneficial relationship with the City. Unfortunately, throughout the City's Use Permit review process, no good deed went unpunished. NBBC firmly believes that the City was initially asked to investigate NBBC's operations more so because of the financial interest of a few persuasive individuals and less so because of potential negative impacts to the neighbors cause by NBBC's operations. As a result, the Planning Commission decided to exercise NBBC's pure business judgment by instituting its own operational policy concerning the admittance of patrons. More importantly, however, NBBC feels that the Planning Commission's direction is unsound in light of the grave importance of our Nation's public policy to prohibit underage drinking. What benefit does the Planning Commission's approach provide the City and is it worth potentially exposing both NBBC and the City to additional liability based on the imposed regulation? As NBBC cannot see any benefit to the condition, NBBC respectfully requests the City Council's rescission of the condition. in addition, from an equitable and practical perspective, NBBC respectfully seeks the reinstatement of the 11:30 p.m. closing time for weekdays. The result of the extension is a total of two hours of operation per week that will permit NBBC to recoup costs associated with the increased operational costs of the modified Use Permit conditions. Thank you for your consideration of this information and NBBC's requests. We look forward to the opportunity to meet with you and to discuss these issues further. Take care, - -Steve Stephen M. Miles, Esq. 3/27/2007 Page 4 of 4 MILES • LAw GROUP P.C. 9911 Irvine Center Drive, Suite 150 Irvine, CA 92618 office 949.788.1425 mobile 714.393.3389 fax 949.788.1991 SMiles@MilesLawGroup.com IMPORTANT: The information contained in this e-mail is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney -client communication and, as such, is PRIVILEGED & CONFIDENTIAL. If the reader of this message is not the intended recipient or an agent responsible for delivering It to the intended recipient, you are hereby notified that you have received this document (and any attachments) in error and that any review, dissemination, distribution or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail and deliver the original message. To ensure compliance with requirements imposed by the IRS, we inform you that (a) any U.S. lax advice in this communication (including attachments) is limited to the one or more U.S. tax issues addressed herein; (b) additional issues may exist that could affect the U.S. tax treatment of the matter addressed below; (c) this advice does not consider or provide a conclusion with respect to any such additional issues; (d) any U.S. tax advice contained in this communication (including attachments) is not intended or written to be used, and cannot be used, for the purpose of promoting, marketing or recommending to another party any transaction or matter addressed herein, and (e) with respect to any U.S. tax issues outside the limited scope of this advice, and U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of avoiding tax-related penalties under the Internal revenue Code. 3/27/2007 Page 1 of 4 Stephen Miles From: Stephen Miles [smiles @mileslawgroup.coml Sent: Tuesday, March 06, 2007 6:25 AM To: 'curryk @pfm.com' Subject: March 13, 2007 NBBC Use Permit Hearing Councilman Curry, My name is Stephen Miles and I am a land use attorney representing the Newport Beach Brewing Company. As you may know, for several months the City of Newport Beach has been investigating the operations of the Newport Beach Brewing Company ("NBBC") and determined that there was a need to modify certain conditions of the Use Permit that NBBC has held for the past 12 years. The General Manager of NBBC, Mr. Jerry Kolbly, and I would appreciate the opportunity to meet with you over the next week and prior to the March 13, 2007, hearing regarding the appeal of the Planning Commission's unanimous approval of a modified Use Permit for NBBC. Tentatively, we would be able to meet with you for breakfast or lunch if that would be your preference. In preparation for our meeting, I would like to provide you with a little bit of background and outline what NBBC will be asking for at the hearing. While NBBC is not the Appellant, the position of the Brewing Company has remained that the Use Permit modifications are voluntary and that the City does not have the authority, under the circumstances and evidence presented by the City, to unilaterally modify the conditions. At the Planning Commission hearing, NBBC was asked to agree to condition modifications beyond those that they had worked out with City staff prior to the hearing. As a result, NBBC has a concern with one of the modified conditions approved by the Planning Commission. In addition, NBBC has one modest request that they believe is both fair and appropriate given the operational changes that NBBC has implemented thus far. BACKGROUND While somewhat unclear, staff claimed the basis for the initial investigation was a complaint lodged by the "Cannery Village Concerned" — an entity claiming to represent numerous residents of the Cannery Village Lofts constructed adjacent to the Brewing Company. To make a long story short, the Newport Beach Police Investigation Report (the "Report") confirming the absence of any violations of the Use Permit conditions is set forth as Attachment 1 to the NBBC memo submitted to the Planning Commission (attached hereto). The Report, along with several testimonials provided by the Police Department, further confirms that the amount of Police incidents caused by or associated with NBBC's operations is far less than similar establishments in the area and is undoubtedly reasonable under the circumstances. The Report also confirms that there was no form of increase in incidents (actual, reported, or otherwise) at or associated with NBBC that would even justify an investigation. Through multiple public hearings and several months of working with City Staff and the neighborhood, NBBC has confirmed several matters. First, no legitimate complaint ever existed that warranted a review and substantial modification of the NBBC Use Permit, Nevertheless, NBBC volunteered to make modifications to their business operations to improve their operations and to simply be a good neighbor. NBBC's voluntary actions were in good faith and at a significant cost. Second, a handful of individuals claiming to represent the Cannery Village are the real complainants in this matter, rather than the fictitious "Cannery Village Concerned." Namely, Bruce Low, a loft owner, and Kevin Weeda, the appellant and developer of the Cannery Village Lofts, are the two individuals that have continued to oppose NBBC's historical operations and have claimed to represent the Cannery Village community. Noting that complaints and correspondence were being submitted by Cannery Village Concerned to the City unsigned, the City (Planning Commission and Staff) asked Mr. Low and Mr. Weeda to verify who they represent and to have an individual sign future correspondences if they are to be considered by the City. Mr. Low and Mr. Weeda never verified their alleged representation of the Cannery Village residents. In fact, Mr. Low didn't even testify at the January 2007 Planning Commission hearing and Mr. Weeda wasn't present at the hearing. While Mr. Weeda wasn't present, didn't testify, and didn't lodge any information that was disclosed to the public or Planning Commission (to enable the public or Commission to even know what his interest or concern was as of January 2007), Mr. Weeda was granted the ability to appeal the matter to the City Council. Third, the noise complaints lodged by Kevin Weeda and his colleagues were merely a pretext for the furtherance 3/27/2007 Page 2 of 4 of Mr. Weeda's financial interest in acquiring the NBBC property for future mixed use loft development. Mr. Weeda has made several attempts to purchase the NBBC property to further his financial interest. Over a two year period the owner of the NBBC property (who also owned the Cannery Village Loft property sold to Mr. Weeda) has informed Mr. Weeda that the NBBC property is subject to a long term lease and not for sale. Fourth, the opposition's pretext is intended to prohibit NBBC and the City from working collaboratively together to address potential neighborhood concerns. Regardless of the concerns raised or what NBBC has voluntarily implemented with the City (e.g., aesthetic treatment and enclosure of the parking lot trash container; line relocation to eliminate noise perceived by residents; added security and security planning beyond NBBC's hours of operation) the opposition remains. From the January 2007 hearing, the opposition clearly illustrated that nothing the City and NBBC voluntarily implemented would appease them, The opposition merely continues to equivocate over their concerns. For example: Action: NBBC relocates the line, eliminates potential noise, and the Report verges the low and reasonable noise levels of NBBC's operations before and after the line relocation. Result The opposition accuses the Police Department of a faulty investigation. At the January 2007 hearing, the Police Department testified that the Report was thorough and NBBC confirmed its open door policy for City inquiries. Action: NBBC relocates the line to eliminate potential noise. Result: The opposition waffles on their support of line relocation and claims that the line relocation results in safety concerns along the front of the building. NBBC and City staff previously worked together on the line relocation (which involved significant tenant improvements), to assure that the relocated line would not result in any safety hazards. Action: NBBC hires additional security and extends security hours beyond NBBC's hours of operation to address potential noise impacts and altercations in the parking lots caused by patrons of other establishments in the area that close at 2:00 a.m. Result: The opposition testifies that NBBC's security policy (prohibiting minors unaccompanied by a parent from entering during late hours) is too "bar - like." The Planning Commission requires a condition that forces NBBC to admit patrons against their sound business judgment and in spite of NBBC's willingness to provide security to assist with potential neighborhood impacts caused by the City's unsecured Municipal Parking Lot. REQUESTED ACTION BY THE CITY COUNCIL 1) NBBC's Carding Policy NBBC holds both a Type 23 and Type 75 Alcoholic Beverage Control license. The Type 75 license permits the sale of wine, beer, and distilled spirits associated with the restaurant and brewpub. In 1999, the City Council amended the Use Permit to allow operation with a Type 75 license and reduced the Restaurant and Brewpub hours of operation for Sunday through Thursday (reduced from 11:30 p.m. to 11:00 p.m.). The lion's share of the Use Permit conditions remained unaffected from the original approval by the City Council in 1993. Regardless of the type of license held, NBBC has always operated under a policy that a conservative approach to dealing with underage patrons is the safest approach. Under the adage of "better safe than sorry," when NBBC is crowded during the later hours of the evening (typically on weekends), NBBC Security will card patrons at the door and prohibit minors that are unaccompanied by a parent from entering the Restaurant(Brewpub. Based on: (1) the Report; (2) further Police Department testimony; (3) direction from the State Alcohol Training Program (LEADS training) that NBBC employees and owners completed per the mandate of the City; (4) recent direction given by the Police Department to restaurant owners at stakeholder meetings sponsored by the City, and; (5) evidence that other restaurants in Newport Beach and other restaurant/brewpubs in Southern California operate under similar policies, City staff agreed with the wisdom behind NBBC's policy and did not recommend modifying the Use Permit to affect their Carding Policy. At the Planning Commission hearing, based upon a theory that the Carding Policy is too "bar - like," the Planning Commission forced NBBC to craft a condition (from the podium), that would permit minors to enter the Restaurant/Brewpub during all hours of operation. The condition essentially states that NBBC cannot prohibit a minor from entering the Restaurant/Brewpub solely based on age. NBBC would prefer to remain realistic on the issue and would ask that the City Council rescind the modification and permit NBBC to operate its business as it has done so for 12 years in a manner that does not add to the risk of underage drinking and driving. The entire basis for the Use Permit review was an unfounded allegation of unreasonable line noise, parking lot noise, and 3/27/2007 Page 3 of 4 boisterous activities from both the NBBC parking lot and adjacent Municipal Parking Lot. NBBC addressed the potential for noise from the rear of its building by relocating the line to the front of the building. The Report otherwise found that no unreasonable noise exists at NBBC. NBBC is also volunteering its security bgyond its current hours of operation to observe and respond to any parking lot issues that may arise from patrons of other restaurants and bars that close several hours after NBBC closes. Any legitimate noise concern has been addressed and rectified and now noise has a far lesser potential to be an issue for the community. NBBC's Carding Policy is not related to a legitimate concern of the neighborhood. In contrast, modification of the Carding Policy will only increase NBBC's liability associated with having to police unaccompanied minors in a crowded Restaurant/Brewpub. 2) Extended Weekday Hours NBBC closes at 11:00 p.m. on weekdays (Monday through Thursdays). In contrast, numerous bars and restaurants in the immediate area, that use both NBBC's parking lot and the adjacent unsecured Municipal Parking Lot, close at 2:00 a.m. everyday. Specifically, Malarkey's, Cassidy's, Rudy's, Woody's Wharf, Blue Beet and Newport Kantina are permitted to operate until 2:00 a.m. everyday. NBBC would respectfully request, with the voluntary operational changes that have already been implemented by the Restaurant/Brewpub, that their weekday hours of operation be extended to 11:30 p.m. — a reinstatement of the hours of operation that the City Council approved in 1993 without the several operational improvements presently implemented by NBBC. Practically, an additionally 30 minutes on weekdays will have no affect on the existing physical conditions for the mixed -use neighborhood. Overall, the conditions will remain greatly improved through NBBC's voluntary measures that have eliminated the potential for noise and added security to the parking lots. Until the various establishments in the area, who's patrons use the Municipal Parking Lot (and NBBC's parking lot well after NBBC is closed), are required to close well before 2:00 a.m., extending NBBC's weekday hours of operation to 11:30 p.m. is inconsequential. Financially, however, with NBBC assuming significant new costs with the revised Use Permit conditions, the additional 30 minutes of operation Monday through Thursday would allow NBBC to recoup those costs in sales revenue. To remain completely reasonable and fair about the issue, NBBC respectfully proposes a condition that would keep NBBC consistent with the other establishments in the area. For example, the hours of operation condition could be drafted so that the additional 30 minutes would expire when any other existing establishment with a 2:00 a.m. weekday closing is required to close at 11:00 p.m. CONCLUSION I sincerely hope that you will see the values of the many voluntary measures that NBBC has implemented to address any real aesthetic, noise, or security concern raised by the community. NBBC understands that their interest is well served by being a great neighbor. Moreover, NBBC has a local and National reputation to uphold with respect to its operations, the quality of food it serves, and the award- winning quality of its hand - crafted beers. NBBC wants to get to the next chapter of a long- standing, mutually beneficial relationship with the City. Unfortunately, throughout the City's Use Permit review process, no good deed went unpunished. NBBC firmly believes that the City was initially asked to investigate NBBC's operations more so because of the financial interest of a few persuasive individuals and less so because of potential negative impacts to the neighbors cause by NBBC's operations. As a result, the Planning Commission decided to exercise NBBC's pure business judgment by instituting its own operational policy concerning the admittance of patrons. More importantly, however, NBBC feels that the Planning Commission's direction is unsound in light of the grave importance of our Nation's public policy to prohibit underage drinking. What benefit does the Planning Commission's approach provide the City and is it worth potentially exposing both NBBC and the City to additional liability based on the imposed regulation? As NBBC cannot see any benefit to the condition, NBBC respectfully requests the City Council's rescission of the condition. In addition, from an equitable and practical perspective, NBBC respectfully seeks the reinstatement of the 11:30 p.m. closing time for weekdays. The result of the extension is a total of two hours of operation per week that will permit NBBC to recoup costs associated with the increased operational costs of the modified Use Permit conditions. Thank you for your consideration of this information and NBBC's requests. We look forward to the opportunity to meet with you and to discuss these issues further. Take care, —Steve Stephen M. Miles, Esq. 3/27/2007 Page 4 of 4 MILES • LAW GROUP P.C. 9911 Irvine Center Drive, Suite 150 Irvine, CA 92618 office 949.788.1425 mobile 714.393.3389 fax 949.788.1991 SMiles@MilesLawGroup.com IMPORTANT: The information contained in this e-mail is intended only for the personal and confidential use of the recipient(s) named above. This message maybe an attorney-client communication and, as such, is PRIVILEGED & CONFIDENTIAL. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document (and any attachments) in error and that any review, dissemination, distribution or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail and deliver the original message. To ensure compliance with requirements imposed by the IRS, we inform you that (a) any U.S. tax advice in this communication (including attachments) is limited to the one or more U.S. tax issues addressed herein; (b) additional issues may exist that could affect the U.S. tax treatment of the matter addressed below; (c) this advice does not consider or provide a conclusion with respect to any such additional issues; (d) any U.S. tax advice contained in this communication (including attachments) is not intended or written to be used, and cannot be used, for the purpose of promoting, marketing or recommending to another party any transaction or matter addressed herein, and (e) with respect to any U.S. tax issues outside the limited scope of this advice, and U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of avoiding tax - related penalties under the Internal revenue Code. 3/27/2007 Page 1 of 4 Stephen Miles From: Stephen Miles [smiles@mileslawgroup.com] Sent: Tuesday, March 06, 2007 6:25 AM To: 'mhenn527 @hotmail.com' Subject: March 13, 2007 NBBC Use Permit Hearing Councilman Henn, My name is Stephen Miles and I am a land use attorney representing the Newport Beach Brewing Company. As you know, for several months the City of Newport Beach has been investigating the operations of the Newport Beach Brewing Company ("NBBC") and determined that there was a need to modify certain conditions of the Use Permit that NBBC has held for the past 12 years. The General Manager of NBBC, Mr. Jerry Kolbly, and I would appreciate the opportunity to meet with you over the next week and prior to the March 13, 2007, hearing regarding the appeal of the Planning Commission's unanimous approval of a modified Use Permit for NBBC. Tentatively, we would be able to meet with you for breakfast or lunch if that would be your preference. In preparation for our meeting, I would like to provide you with a little bit of background and outline what NBBC will be asking for at the hearing. While NBBC is not the Appellant, the position of the Brewing Company has remained that the Use Permit modifications are voluntary and that the City does not have the authority, under the circumstances and evidence presented by the City, to unilaterally modify the conditions. At the Planning Commission hearing, NBBC was asked to agree to condition modifications beyond those that they had worked out with City staff prior to the hearing. As a result, NBBC has a concern with one of the modified conditions approved by the Planning Commission. In addition, NBBC has one modest request that they believe is both fair and appropriate given the operational changes that NBBC has implemented thus far. BACKGROUND While somewhat unclear, staff claimed the basis for the initial investigation was a complaint lodged by the "Cannery Village Concerned" — an entity claiming to represent numerous residents of the Cannery Village Lofts constructed adjacent to the Brewing Company. To make a long story short, the Newport Beach Police Investigation Report (the "Report") confirming the absence of any violations of the Use Permit conditions is set forth as Attachment 1 to the NBBC memo submitted to the Planning Commission (attached hereto). The Report, along with several testimonials provided by the Police Department, further confirms that the amount of Police incidents caused by or associated with NBBC's operations is far less than similar establishments in the area and is undoubtedly reasonable under the circumstances. The Report also confirms that there was no form of increase in incidents (actual, reported, or otherwise) at or associated with NBBC that would even justify an investigation. Through multiple public hearings and several months of working with City Staff and the neighborhood, NBBC has confirmed several matters. First, no legitimate complaint ever existed that warranted a review and substantial modification of the NBBC Use Permit. Nevertheless, NBBC volunteered to make modifications to their business operations to improve their operations and to simply be a good neighbor. NBBC's voluntary actions were in good faith and at a significant cost. Second, a handful of individuals claiming to represent the Cannery Village are the real complainants in this matter, rather than the fictitious "Cannery Village Concerned." Namely, Bruce Low, a loft owner, and Kevin Weeda, the appellant and developer of the Cannery Village Lofts, are the two individuals that have continued to oppose NBBC's historical operations and have claimed to represent the Cannery Village community. Noting that complaints and correspondence were being submitted by Cannery Village Concerned to the City unsigned, the City (Planning Commission and Staff) asked Mr. Low and Mr. Weeda to verify who they represent and to have an individual sign future correspondences if they are to be considered by the City. Mr. Low and Mr. Weeda never verified their alleged representation of the Cannery Village residents. In fact, Mr. Low didn't even testify at the January 2007 Planning Commission hearing and Mr. Weeda wasn't present at the hearing. While Mr. Weeda wasn't present, didn't testify, and didn't lodge any information that was disclosed to the public or Planning Commission (to enable the public or Commission to even know what his interest or concern was as of January 2007), Mr. Weeda was granted the ability to appeal the matter to the City Council. Third, the noise complaints lodged by Kevin Weeda and his colleagues were merely a pretext for the furtherance 3/27/2007 Page 2 of 4 of Mr. Weeda's financial interest in acquiring the NBBC property for future mixed use loft development. Mr. Weeda has made several attempts to purchase the NBBC property to further his financial interest. Over a two year period the owner of the NBBC property (who also owned the Cannery Village Loft property sold to Mr. Weeda) has informed Mr. Weeda that the NBBC property is subject to a long term lease and not for sale. Fourth, the opposition's pretext is intended to prohibit NBBC and the City from working collaboratively together to address potential neighborhood concerns. Regardless of the concerns raised or what NBBC has voluntarily implemented with the City (e.g., aesthetic treatment and enclosure of the parking lot trash container; line relocation to eliminate noise perceived by residents; added security and security planning beyond NBBC's hours of operation) the opposition remains. From the January 2007 hearing, the opposition clearly illustrated that nothing the City and NBBC voluntarily implemented would appease them. The opposition merely continues to equivocate over their concerns. For example: Action: NBBC relocates the line, eliminates potential noise, and the Report verifies the low and reasonable noise levels of NBBC's operations before and after the line relocation. Result. The opposition accuses the Police Department of a faulty investigation. At the January 2007 hearing, the Police Department testified that the Report was thorough and NBBC confirmed its open door policy for City inquiries. Action: NBBC relocates the line to eliminate potential noise. Result: The opposition waffles on their support of line relocation and claims that the line relocation results in safety concerns along the front of the building. NBBC and City staff previously worked together on the line relocation (which involved significant tenant improvements), to assure that the relocated line would not result in any safety hazards. Action: NBBC hires additional security and extends security hours beyond NBBC's hours of operation to address potential noise impacts and altercations in the parking lots caused by patrons of other establishments in the area that close at 2:00 a.m. Result: The opposition testifies that NBBC's security policy (prohibiting minors unaccompanied by a parent from entering during late hours) is too "bar - like." The Planning Commission requires a condition that forces NBBC to admit patrons against their sound business judgment and in spite of NBBC's willingness to provide security to assist with potential neighborhood impacts caused by the City's unsecured Municipal Parking Lot. REQUESTED ACTION BY THE CITY COUNCIL 1) NBBC's Carding Policy NBBC holds both a Type 23 and Type 75 Alcoholic Beverage Control license. The Type 75 license permits the sale of wine, beer, and distilled spirits associated with the restaurant and brewpub. In 1999, the City Council amended the Use Permit to allow operation with a Type 75 license and reduced the Restaurant and Brewpub hours of operation for Sunday through Thursday (reduced from 11:30 p.m. to 11:00 p.m.). The lion's share of the Use Permit conditions remained unaffected from the original approval by the City Council in 1993. Regardless of the type of license held, NBBC has always operated under a policy that a conservative approach to dealing with underage patrons is the safest approach. Under the adage of "better safe than sorry," when NBBC is crowded during the later hours of the evening (typically on weekends), NBBC Security will card patrons at the door and prohibit minors that are unaccompanied by a parent from entering the Restaurant/Brewpub. Based on: (1) the Report; (2) further Police Department testimony; (3) direction from the State Alcohol Training Program (LEADS training) that NBBC employees and owners completed per the mandate of the City; (4) recent direction given by the Police Department to restaurant owners at stakeholder meetings sponsored by the City, and; (5) evidence that other restaurants in Newport Beach and other restauranttbrewpubs in Southern California operate under similar policies, City staff agreed with the wisdom behind NBBC's policy and did not recommend modifying the Use Permit to affect their Carding Policy. At the Planning Commission hearing, based upon a theory that the Carding Policy is too "bar - like," the Planning Commission forced NBBC to craft a condition (from the podium), that would permit minors to enter the Restaurant/Brewpub during all hours of operation. The condition essentially states that NBBC cannot prohibit a minor from entering the Restaurant/Brewpub solely based on age. NBBC would prefer to remain realistic on the issue and would ask that the City Council rescind the modification and permit NBBC to operate its business as it has done so for 12 years in a manner that does not add to the risk of underage drinking and driving. The entire basis for the Use Permit review was an unfounded allegation of unreasonable line noise, parking lot noise, and 3/27/2007 Page 3 of 4 boisterous activities from both the NBBC parking lot and adjacent Municipal Parking Lot. NBBC addressed the potential for noise from the rear of its building by relocating the line to the front of the building. The Report otherwise found that no unreasonable noise exists at NBBC. NBBC is also volunteering its security beyond its current hours of operation to observe and respond to any parking lot issues that may arise from patrons of other restaurants and bars that close several hours after NBBC closes. Any legitimate noise concern has been addressed and rectified and now noise has a far lesser potential to be an issue for the community. NBBC's Carding Policy is not related to a legitimate concern of the neighborhood. In contrast, modification of the Carding Policy will only increase NBBC's liability associated with having to police unaccompanied minors in a crowded RestauranttBrewpub. 2) Extended Weekday Hours NBBC closes at 11:00 p.m. on weekdays (Monday through Thursdays). In contrast, numerous bars and restaurants in the immediate area, that use both NBBC's parking lot and the adjacent unsecured Municipal Parking Lot, close at 2:00 a.m. everyday. Specifically, Malarkey's, Cassidy's, Rudy's, Woody's Wharf, Blue Beet and Newport Kantina are permitted to operate until 2:00 a.m. everyday. NBBC would respectfully request, with the voluntary operational changes that have already been implemented by the RestauranttBrewpub, that their weekday hours of operation be extended to 11:30 p.m. — a reinstatement of the hours of operation that the City Council approved in 1993 without the several operational improvements presently implemented by NBBC. Practically, an additionally 30 minutes on weekdays will have no affect on the existing physical conditions for the mixed -use neighborhood. Overall, the conditions will remain greatly improved through NBBC's voluntary measures that have eliminated the potential for noise and added security to the parking lots. Until the various establishments in the area, who's patrons use the Municipal Parking Lot (and NBBC's .parking lot well after NBBC is closed), are required to close well before 2:00 a.m., extending NBBC's weekday hours of operation to 11:30 p.m. is inconsequential. Financially, however, with NBBC assuming significant new costs with the revised Use Permit conditions, the additional 30 minutes of operation Monday through Thursday would allow NBBC to recoup those costs in sales revenue. To remain completely reasonable and fair about the issue, NBBC respectfully proposes a condition that would keep NBBC consistent with the other establishments in the area. For example, the hours of operation condition could be drafted so that the additional 30 minutes would expire when any other existing establishment with a 2:00 a.m. weekday closing is required to close at 11:00 p.m. CONCLUSION I sincerely hope that you will see the values of the many voluntary measures that NBBC has implemented to address any real aesthetic, noise, or security concern raised by the community. NBBC understands that their interest is well served by being a great neighbor. Moreover, NBBC has a local and National reputation to uphold with respect to its operations, the quality of food it serves, and the award - winning quality of its hand - crafted beers. NBBC wants to get to the next chapter of a long- standing, mutually beneficial relationship with the City. Unfortunately, throughout the City's Use Permit review process, no good deed went unpunished. NBBC firmly believes that the City was initially asked to investigate NBBC's operations more so because of the financial interest of a few persuasive individuals and less so because of potential negative impacts to the neighbors cause by NBBC's operations. As a result, the Planning Commission decided to exercise NBBC's pure business judgment by instituting its own operational policy concerning the admittance of patrons. More importantly, however, NBBC feels that the Planning Commission's direction is unsound In light of the grave importance of our Nation's public policy to prohibit underage drinking. What benefit does the Planning Commission's approach provide the City and is it worth potentially exposing both NBBC and the City to additional liability based on the imposed regulation? As NBBC cannot see any benefit to the condition, NBBC respectfully requests the City Council's rescission of the condition. In addition, from an equitable and practical perspective, NBBC respectfully seeks the reinstatement of the 11:30 p.m. closing time for weekdays. The result of the extension is a total of two hours of operation per week that will permit NBBC to recoup costs associated with the increased operational costs of the modified Use Permit conditions. Thank you for your consideration of this information and NBBC's requests. We look forward to the opportunity to meet with you and to discuss these issues further. Take care, - -Steve Stephen M. Miles, Esq. 3/27/2007 Page 4 of 4 MILES • LAW GROUP P.C. 9911 Irvine Center Drive, Suite 150 Irvine, CA 92618 office 949.788.1425 mobile 714.393.3389 fax 949.788.1991 SMiles@MilesLawGroup.com IMPORTANT: The information contained in this e-mail is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attomey - client communication and, as such, is PRIVILEGED & CONFIDENTIAL. It the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you am hereby notified that you have received this document (and any attachments) in error and that any review, dissemination, distribution or copying of this message is strictly prohibited. It you have received this communication in error, please notify us immediately by e-mail and deliver the original message. To ensure compliance with requirements imposed by the IRS, we inform you that (a) any U.S. tax advice in this communication (including attachments) is limited to the one or more U.S. tax issues addressed herein; (b) additional issues may exist that could affect the U.S. tax treatment of the matter . addressed below; (c) this advice does not consider or provide a conclusion with respect to any such additional issues; (d) any U.S. tax advice contained in this communication (including attachments) is not intended or written to be used, and cannot be used, for the purpose of promoting, marketing or recommending to another party any transaction or matter addressed herein, and (e) with respect to any U.S. tax issues outside the limited scope of this advice, and U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for are purpose of avoiding tax- related penalties under the Internal revenue Code. 3/27/2007 Page 1 of 4 Stephen Miles From: Stephen Miles [smiles @mileslawgroup.com] Sent: Tuesday, March 06, 2007 6:25 AM To: 'lesliejdaigle @aol.com' Subject: March 13, 2007 NBBC Use Permit Hearing Councilwoman Daigle, My name is Stephen Miles and I am a land use attorney representing the Newport Beach Brewing Company. As you may know, for several months the City of Newport Beach has been investigating the operations of the Newport Beach Brewing Company ( "NBBC ") and determined that there was a need to modify certain conditions of the Use Permit that NBBC has held for the past 12 years. The General Manager of NBBC, Mr. Jerry Kolbly, and I would appreciate the opportunity to meet with you over the next week and prior to the March 13, 2007, hearing regarding the appeal of the Planning Commission's unanimous approval of a modified Use Permit for NBBC. Tentatively, we would be able to meet with you for breakfast or lunch if that would be your preference. In preparation for our meeting, I would like to provide you with a little bit of background and outline what NBBC will be asking for at the hearing. While NBBC is not the Appellant, the position of the Brewing Company has remained that the Use Permit modifications are voluntary and that the City does not have the authority, under the circumstances and evidence presented by the City, to unilaterally modify the conditions. At the Planning Commission hearing, NBBC was asked to agree to condition modifications beyond those that they had worked out with City staff prior to the hearing. As a result. NBBC has a concern with one of the modified conditions approved by the Planning Commission. In addition, NBBC has one modest request that they believe is both fair and appropriate given the operational changes that NBBC has implemented thus far. BACKGROUND While somewhat unclear, staff claimed the basis for the initial investigation was a complaint lodged by the "Cannery Village Concerned" — an entity claiming to represent numerous residents of the Cannery Village Lofts constructed adjacent to the Brewing Company. To make a long story short, the Newport Beach Police Investigation Report (the "Report") confirming the absence of any violations of the Use Permit conditions is set forth as Attachment 1 to the NBBC memo submitted to the Planning Commission (attached hereto). The Report, along with several testimonials provided by the Police Department, further confirms that the amount of Police incidents caused by or associated with NBBC's operations is far less than similar establishments in the area and is undoubtedly reasonable under the circumstances. The Report also confirms that there was no form of increase in incidents (actual, reported, or otherwise) at or associated with NBBC that would even justify an investigation. Through multiple public hearings and several months of working with City Staff and the neighborhood, NBBC has confirmed several matters. First, no legitimate complaint ever existed that warranted a review and substantial modification of the NBBC Use Permit, Nevertheless, NBBC volunteered to make modifications to their business operations to improve their operations and to simply be a good neighbor. NBBC's voluntary actions were in good faith and at a significant cost. Second, a handful of individuals claiming to represent the Cannery Village are the real complainants in this matter, rather than the fictitious "Cannery Village Concerned." Namely, Bruce Low, a loft owner, and Kevin Weeda, the appellant and developer of the Cannery Village Lofts, are the two individuals that have continued to oppose NBBC's historical operations and have claimed to represent the Cannery Village community. Noting that complaints and correspondence were being submitted by Cannery Village Concerned to the City unsigned, the City (Planning Commission and Staff) asked Mr. Low and Mr. Weeda to verify who they represent and to have an individual sign future correspondences if they are to be considered by the City. Mr. Low and Mr. Weeda never verified their alleged representation of the Cannery Village residents. In fact, Mr. Low didn't even testify at the January 2007 Planning Commission hearing and Mr. Weeda wasn't present at the hearing. While Mr. Weeda wasn't present, didn't testify, and didn't lodge any information that was disclosed to the public or Planning Commission (to enable the public or Commission to even know what his interest or concern was as of January 2007), Mr. Weeda was granted the ability to appeal the matter to the City Council. Third, the noise complaints lodged by Kevin Weeda and his colleagues were merely a pretext for the furtherance 3/27/2007 Page 2 of 4 of Mr. Weeda's financial interest in acquiring the NBBC property for future mixed use loft development. Mr. Weeda has made several attempts to purchase the NBBC property to further his financial interest. Over a two year period the owner of the NBBC property (who also owned the Cannery Village Loft property sold to Mr. Weeda) has informed Mr. Weeda that the NBBC property is subject to a long term lease and not for sale. Fourth, the opposition's pretext is intended to prohibit NBBC and the City from working collaboratively together to address potential neighborhood concerns. Regardless of the concerns raised or what NBBC has voluntarily implemented with the City (e.g., aesthetic treatment and enclosure of the parking lot trash container; line relocation to eliminate noise perceived by residents; added security and security planning beyond NBBC's hours of operation) the opposition remains. From the January 2007 hearing, the opposition clearly illustrated that nothing the City and NBBC voluntarily implemented would appease them. The opposition merely continues to equivocate over their concerns. For example: Action: NBBC relocates the line, eliminates potential noise, and the Report verifies the low and reasonable noise levels of NBBC's operations before and after the line relocation. Result: The opposition accuses the Police Department of a faulty investigation. At the January 2007 hearing, the Police Department testified that the Report was thorough and NBBC confirmed its open door policy for City inquiries. Action: NBBC relocates the line to eliminate potential noise. Result The opposition waffles on their support of line relocation and claims that the line relocation results in safety concerns along the front of the building. NBBC and City staff previously worked together on the line relocation (which Involved significant tenant improvements), to assure that the relocated line would not result in any safety hazards. Action: NBBC hires additional security and extends security hours beyond NBBC's hours of operation to address potential noise impacts and altercations in the parking lots caused by patrons of other establishments in the area that close at 2:00 a.m. Result: The opposition testifies that NBBC's security policy (prohibiting minors unaccompanied by a parent from entering during late hours) is too "bar - like." The Planning Commission requires a condition that forces NBBC to admit patrons against their sound business judgment and in spite of NBBC's willingness to provide security to assist with potential neighborhood impacts caused by the City's unsecured Municipal Parking Lot. REQUESTED ACTION BY THE CITY COUNCIL 1) NBBC's Carding Policy NBBC holds both a Type 23 and Type 75 Alcoholic Beverage Control license. The Type 75 license permits the sale of wine, beer, and distilled spirits associated with the restaurant and brewpub. In 1999, the City Council amended the Use Permit to allow operation with a Type 75 license and reduced the Restaurant and Brewpub hours of operation for Sunday through Thursday (reduced from 11:30 p.m. to 11:00 p.m.). The lion's share of the Use Permit conditions remained unaffected from the original approval by the City Council in 1993. Regardless of the type of license held, NBBC has always operated under a policy that a conservative approach to dealing with underage patrons is the safest approach. Under the adage of "better safe than sorry," when NBBC is crowded during the later hours of the evening (typically on weekends), NBBC Security will card patrons at the door and prohibit minors that are unaccompanied by a parent from entering the Restaurant/Brewpub. Based on: (1) the Report; (2) further Police Department testimony; (3) direction from the State Alcohol Training Program (LEADS training) that NBBC employees and owners completed per the mandate of the City; (4) recent direction given by the Police Department to restaurant owners at stakeholder meetings sponsored by the City, and; (5) evidence that other restaurants in Newport Beach and other restaurant/brewpubs in Southern California operate under similar policies, City staff agreed with the wisdom behind NBBC's policy and did not recommend modifying the Use Permit to affect their Carding Policy. At the Planning Commission hearing, based upon a theory that the Carding Policy is too "bar - like," the Planning Commission forced NBBC to craft a condition (from the podium), that would permit minors to enter the Restaurant/Brewpub during all hours of operation. The condition essentially states that NBBC cannot prohibit a minor from entering the Restaurant/Brewpub solely based on age. NBBC would prefer to remain realistic on the issue and would ask that the City Council rescind the modification and permit NBBC to operate its business as it has done so for 12 years in a manner that does not add to the risk of underage drinking and driving. The entire basis for the Use Permit review was an unfounded allegation of unreasonable line noise, parking lot noise, and 3/27/2007 Page 3 of 4 boisterous activities from both the NBBC parking lot and adjacent Municipal Parking Lot. NBBC addressed the potential for noise from the rear of its building by relocating the line to the front of the building. The Report otherwise found that no unreasonable noise exists at NBBC. NBBC is also volunteering its security beyond its current hours of operation to observe and respond to any parking lot issues that may arise from patrons of other restaurants and bars that close several hours after NBBC closes. Any legitimate noise concern has been addressed and rectified and now noise has a far lesser potential to be an issue for the community. NBBC's Carding Policy is not related to a legitimate concern of the neighborhood. In contrast, modification of the Carding Policy will only increase NBBC's liability associated with having to police unaccompanied minors in a crowded Restaurant/Brewpub. 2) Extended Weekday Hours NBBC closes at 11:00 p.m. on weekdays (Monday through Thursdays). In contrast, numerous bars and restaurants in the immediate area, that use both NBBC's parking lot and the adjacent unsecured Municipal Parking Lot, close at 2:00 a.m. everyday. Specifically, Malarkey's, Cassidy's, Rudy's, Woody's Wharf, Blue Beet and Newport Kantina are permitted to operate until 2:00 a.m. everyday. NBBC would respectfully request, with the voluntary operational changes that have already been implemented by the RestauranttBrewpub, that their weekday hours of operation be extended to 11:30 p.m. — a reinstatement of the hours of operation that the City Council approved in 1993 without the several operational improvements presently implemented by NBBC. Practically, an additionally 30 minutes on weekdays will have no affect on the existing physical conditions for the mixed -use neighborhood. Overall, the conditions will remain greatly improved through NBBC's voluntary measures that have eliminated the potential for noise and added security to the parking lots. Until the various establishments in the area, who's patrons use the Municipal Parking Lot (and NBBC's parking lot well after NBBC is closed), are required to close well before 2:00 a.m., extending NBBC's weekday hours of operation to 11:30 p.m. is inconsequential. Financially, however, with NBBC assuming significant new costs with the revised Use Permit conditions, the additional 30 minutes of operation Monday through Thursday would allow NBBC to recoup those costs in sales revenue. To remain completely reasonable and fair about the issue, NBBC respectfully proposes a condition that would keep NBBC consistent with the other establishments in the area. For example, the hours of operation condition could be drafted so that the additional 30 minutes would expire when any other existing establishment with a 2:00 a.m. weekday closing is required to close at 11:00 p.m. CONCLUSION I sincerely hope that you will see the values of the many voluntary measures that NBBC has implemented to address any real aesthetic, noise, or security concern raised by the community. NBBC understands that their interest is well served by being a great neighbor. Moreover, NBBC has a local and National reputation to uphold with respect to its operations, the quality of food it serves, and the award - winning quality of its hand - crafted beers. NBBC wants to get to the next chapter of a long- standing, mutually beneficial relationship with the City. Unfortunately, throughout the City's Use Permit review process, no good deed went unpunished. NBBC firmly believes that the City was initially asked to investigate NBBC's operations more so because of the financial interest of a few persuasive individuals and less so because of potential negative impacts to the neighbors cause by NBBC's operations. As a result, the Planning Commission decided to exercise NBBC's pure business judgment by instituting its own operational policy concerning the admittance of patrons. More importantly, however, NBBC feels that the Planning Commission's direction is unsound in light of the grave importance of our Nation's public policy to prohibit underage drinking. What benefit does the Planning Commission's approach provide the City and is it worth potentially exposing both NBBC and the City to additional liability based on the imposed regulation? As NBBC cannot see any benefit to the condition, NBBC respectfully requests the City Council's rescission of the condition. In addition, from an equitable and practical perspective, NBBC respectfully seeks the reinstatement of the 11:30 p.m. closing time for weekdays. The result of the extension is a total of two hours of operation per week that will permit NBBC to recoup costs associated with the increased operational costs of the modified Use Permit conditions. Thank you for your consideration of this information and NBBC's requests. We look forward to the opportunity to meet with you and to discuss these issues further. Take care, —Steve Stephen M. Miles, Esq. 3/27/2007 Page 4of4 MILES • LAW GROUP P.C. 9911 Irvine Center Drive, Suite 150 Irvine, CA 92618 office 949.788.1425 mobile 714.393.3389 fax 949.788.1991 SMiles@MtLlesLawLGroup.com IMPORTANT: The information contained in this e-mail is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attomey- client communication and, as such. is PRIVILEGED & CONFIDENTIAL. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document (and any attachments) in error and that any review, dissemination, distribution or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail and deliver the original message. To ensure compliance with requirements imposed by the IRS, we inform you that (a) any U.S. tax advice in this communication (including attachments) is limited to the one or more U.S. tax issues addressed herein; (b) additional issues may exist that could affect the U.S. tax treatment of the matter addressed below; (c) this advice does not consider or provide a conclusion with respect to any such additional issues; (d) any U.S. tax advice contained in this communication (including attachments) is not intended or written to be used, and cannot be used, for the purpose of promoting, marketing or recommending to another party any transaction or matter addressed herein, and (e) with respect to any U.S. tax issues outside the limited scope of this advice, and U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of avoiding tax- related penalties under the Internal revenue Code. 3/27/2007 Page 1 of 4 Stephen Miles From: Stephen Miles [smiles @mileslawgroup.com] Sent: Tuesday, March 06, 2007 6:25 AM To: 'don2webb@earthl ink. net' Subject: March 13, 2007 NBBC Use Permit Hearing Councilman Webb, My name is Stephen Miles and I am a land use attorney representing the Newport Beach Brewing Company. As you may know, for several months the City of Newport Beach has been investigating the operations of the Newport Beach Brewing Company ( "NBBC ") and determined that there was a need to modify certain conditions of the Use Permit that NBBC has held for the past 12 years. The General Manager of NBBC, Mr. Jerry Kolbly, and 'I would appreciate the opportunity to meet with you over the next week and prior to the March 13, 2007, hearing regarding the appeal of the Planning Commission's unanimous approval of a modified Use Permit for NBBC. Tentatively, we would be able to meet with you for breakfast or lunch if that would be your preference. In preparation for our meeting, I would like to provide you with a little bit of background and outline what NBBC will be asking for at the hearing. While NBBC is not the Appellant, the position of the Brewing Company has remained that the Use Permit modifications are voluntary and that the City does not have the authority, under the circumstances and evidence presented by the City, to unilaterally modify the conditions. At the Planning Commission hearing, NBBC was asked to agree to condition modifications beyond those that they had worked out with City staff prior to the hearing. As a result, NBBC has a concern with one of the modified conditions approved by the Planning Commission. In addition, NBBC has one modest request that they believe is both fair and appropriate given the operational changes that NBBC has implemented thus far. BACKGROUND While somewhat unclear, staff claimed the basis for the initial investigation was a complaint lodged by the "Cannery Village Concerned"— an entity claiming to represent numerous residents of the Cannery Village Lofts constructed adjacent to the Brewing Company. To make a long story short, the Newport Beach Police Investigation Report (the "Report") confirming the absence of any violations of the Use Permit conditions is set forth as Attachment 1 to the NBBC memo submitted to the Planning Commission (attached hereto). The Report, along with several testimonials provided by the Police Department, further confirms that the amount of Police incidents caused by or associated with NBBC's operations is far less than similar establishments in the area and is undoubtedly reasonable under the circumstances. The Report also confirms that there was no form of increase in incidents (actual, reported, or otherwise) at or associated with NBBC that would even justify an investigation. Through multiple public hearings and several months of working with City Staff and the neighborhood, NBBC has confirmed several matters. First, no legitimate complaint ever existed that warranted a review and substantial modification of the NBBC Use Permit. Nevertheless, NBBC volunteered to make modifications to their business operations to improve their operations and to simply be a good neighbor. NBBC's voluntary actions were in good faith and at a significant cost. Second, a handful of individuals claiming to represent the Cannery Village are the real complainants in this matter, rather than the fictitious "Cannery Village Concerned." Namely, Bruce Low, a loft owner, and Kevin Weeda, the appellant and developer of the Cannery Village Lofts, are the two individuals that have continued to oppose NBBC's historical operations. and have claimed to represent the Cannery Village community. Noting that complaints and correspondence were being submitted by Cannery Village Concerned to the City unsigned, the City (Planning Commission and Staff) asked Mr. Low and Mr. Weeda to verify who they represent and to have an individual sign future correspondences if they are to be considered by the City. Mr. Low and Mr. Weeda never verified their alleged representation of the Cannery Village residents. In fact, Mr. Low didn't even testify at the January 2007 Planning Commission hearing and Mr. Weeda wasn't present at the hearing. While Mr. Weeda wasn't present, didn't testify, and didn't lodge any information that was disclosed to the public or Planning Commission (to enable the public or Commission to even know what his interest or concern was as of January 2007), Mr. Weeda was granted the ability to appeal the matter to the City Council. Third, the noise complaints lodged by Kevin Weeda and his colleagues were merely a pretext for the furtherance 3/27/2007 Page 2 of 4 of Mr. Weeda's financial interest in acquiring the NBBC property for future mixed use loft development. Mr. Weeda has made several attempts to purchase the NBBC property to further his financial interest. Over a two year period the owner of the NBBC property (who also owned the Cannery Village Loft property sold to Mr. Weeda) has informed Mr. Weeda that the NBBC property is subject to a long term lease and not for sale. Fourth, the opposition's pretext is intended to prohibit NBBC and the City from working collaboratively together to address potential neighborhood concerns. Regardless of the concerns raised or what NBBC has voluntarily implemented with the City (e.g., aesthetic treatment and enclosure of the parking lot trash container; line relocation to eliminate noise perceived by residents; added security and security planning beyond NBBC's hours of operation) the opposition remains. From the January 2007 hearing, the opposition clearly illustrated that nothing the City and NBBC voluntarily implemented would appease them. The opposition merely continues to equivocate over their. concerns. Far example: Action: NBBC relocates the line, eliminates potential noise, and the Report verifies the low and reasonable noise levels of NBBC's operations before and after the line relocation. Result: The opposition accuses the Police Department of a faulty investigation. At the January 2007 hearing, the Police Department testified that the Report was thorough and NBBC confirmed its open door policy for City inquiries. Action: NBBC relocates the line to eliminate potential noise. Result: The opposition waffles on their support of line relocation and claims that the line relocation results in safety concerns along the front of the building. NBBC and City staff previously worked together on the line relocation (which involved significant tenant improvements), to assure that the relocated line would not result in any safety hazards. Action: NBBC hires additional security and extends security hours beyond NBBC's hours of operation to address potential noise impacts and altercations in the parking lots caused by patrons of other establishments in the area that close at 2:00 a.m. Result: The opposition testifies that NBBC's security policy (prohibiting minors unaccompanied by a parent from entering during late hours) is too "bar - like." The Planning Commission requires a condition that forces NBBC to admit patrons against their sound business judgment and in spite of NBBC's willingness to provide security to assist with potential neighborhood impacts caused by the City's unsecured Municipal Parking Lot. REQUESTED ACTION BY THE CITY COUNCIL !) NBBC's Carding Policy NBBC holds both a Type 23 and Type 75 Alcoholic Beverage Control license. The Type 75 license permits the sale of wine, beer, and distilled spirits associated with the restaurant and brewpub. In 1999, the City Council amended the Use Permit to allow operation with a Type 75 license and reduced the Restaurant and Brewpub hours of operation for Sunday through Thursday (reduced from 11:30 p.m. to 11:00 p.m.). The lion's share of the Use Permit conditions remained unaffected from the original approval by the City Council in 1993. Regardless of the type of license held, NBBC has always operated under a policy that a conservative approach to dealing with underage patrons is the safest approach. Under the adage of "better safe than sorry," when NBBC is crowded during the later hours of the evening (typically on weekends), NBBC Security will card patrons at the door and prohibit minors that are unaccompanied by a parent from entering the RestauranttBrewpub. Based on: (1) the Report; (2) further Police Department testimony; (3) direction from the State Alcohol Training Program (LEADS training) that NBBC employees and owners completed per the mandate of the City; (4) recent direction given by the Police Department to restaurant owners at stakeholder meetings sponsored by the City, and; (5) evidence that other restaurants in Newport Beach and other restauranttbrewpubs in Southern California operate under similar policies, City staff agreed with the wisdom behind NBBC's policy and did not recommend modifying the Use Permit to affect their Carding Policy. At the Planning Commission hearing, based upon a theory that the Carding Policy is too "bar - like," the Planning Commission forced NBBC to craft a condition (from the podium), that would permit minors to enter the Restaurant/Brewpub during all hours of operation. The condition essentially states that NBBC cannot prohibit a minor from entering the RestauranUBrewpub solely based on age. NBBC would prefer to remain realistic on the issue and would ask that the City Council rescind the modification and permit NBBC to operate its business as it has done so for 12 years in a manner that does not add to the risk of underage drinking and driving. The entire basis for the Use Permit review was an unfounded allegation of unreasonable line noise, parking lot noise, and 3/27/2007 Page 3 of 4 boisterous activities from both the NBBC parking lot and adjacent Municipal Parking Lot. NBBC addressed the potential for noise from the rear of its building by relocating the line to the front of the building. The Report otherwise found that no unreasonable noise exists at NBBC. NBBC is also volunteering its security b=nd its current hours of operation to observe and respond to any parking lot issues that may arise from patrons of other restaurants and bars that close several hours after NBBC closes. Any legitimate noise concern has been addressed and rectified and now noise has a far lesser potential to be an issue for the community. NBBC's Carding Policy is not related to a legitimate concern of the neighborhood. In contrast, modification of the Carding Policy will only increase NBBC's liability associated with having to police unaccompanied minors in a crowded Restaurant/Brewpub. 2) Extended Weekday Hours NBBC closes at 11:00 p.m. on weekdays (Monday through Thursdays). In contrast, numerous bars and restaurants in the immediate area, that use both NBBC's parking lot and the adjacent unsecured Municipal Parking Lot, close at 2:00 a.m. everyday. Specifically, Malarkey's, Cassidy's, Rudy's, Woody's Wharf, Blue Beet and Newport Kantina are permitted to operate until 2:00 a.m. everyday. NBBC would respectfully request, with the voluntary operational changes that have already been implemented by the Restaurant/Brewpub, that their weekday hours of operation be extended to 11:30 p.m. — a reinstatement of the hours of operation that the City Council approved in 1993 without the several operational improvements presently implemented by NBBC. Practically, an additionally 30 minutes on weekdays will have no affect on the existing physical conditions for the mixed -use neighborhood. Overall, the conditions will remain greatly improved through NBBC's voluntary measures that have eliminated the potential for noise and added security to the parking lots. Until the various establishments in the area, who's patrons use the Municipal Parking Lot (and NBBC's parking lot well after NBBC is closed), are required to close well before 2:00 a.m., extending NBBC's weekday hours of operation to 11:30 p.m. is inconsequential. Financially, however, with NBBC assuming significant new costs with the revised Use Permit conditions, the additional 30 minutes of operation Monday through Thursday would allow NBBC to recoup those costs in sales revenue. To remain completely reasonable and fair about the issue, NBBC respectfully proposes a condition that would keep NBBC consistent with the other establishments in the area. For example, the hours of operation condition could be drafted so that the additional 30 minutes would expire when any other existing establishment with a 2:00 a.m. weekday closing is required to close at 11:00 p.m. CONCLUSION I sincerely hope that you will see the values of the many voluntary measures that NBBC has implemented to address any real aesthetic, noise, or security concern raised by the community. NBBC understands that their interest is well served by being a great neighbor. Moreover, NBBC has a local and National reputation to uphold with respect to its operations, the quality of food it serves, and the award- winning quality of its hand - crafted beers. NBBC wants to get to the next chapter of a long- standing, mutually beneficial relationship with the City. Unfortunately, throughout the City's Use Permit review process, no good deed went unpunished. NBBC firmly believes that the City was initially asked to investigate NBBC's operations more so because of the financial interest of a few persuasive individuals and less so because of potential negative impacts to the neighbors cause by NBBC's operations. As a result, the Planning Commission decided to exercise NBBC's pure business judgment by instituting its own operational policy concerning the admittance of patrons. More importantly, however, NBBC feels that the Planning Commission's direction is unsound in light of the grave importance of our Nation's public policy to prohibit underage drinking. What benefit does the Planning Commission's approach provide the City and is it worth potentially exposing both NBBC and the City to additional liability based on the imposed regulation? As NBBC cannot see any benefit to the condition, NBBC respectfully requests the City Council's rescission of the condition. In addition, from an equitable and practical perspective, NBBC respectfully seeks the reinstatement of the 11:30 p.m. closing time for weekdays. The result of the extension is a total of two hours of operation per week that will permit NBBC to recoup costs associated with the increased operational costs of the modified Use Permit conditions. Thank you for your consideration of this information and NBBC's requests. We look forward to the opportunity to meet with you and to discuss these issues further. Take care, —Steve Stephen M. Miles, Esq. 3/27/2007 Page 4 of 4 MILES • LAW GROUP P.C. 9911 Irvine Center Drive, Suite 150 Irvine, CA 92618 office 949.788.1425 mobile 714.393.3389 fax 949.788.1991 SMiles@MilesLawGroup.com IMPORTANT: The Information contained in this e-mail is intended only for the personal and confidential use of the recipient(s) named above. This message maybe an attorneyclient communication and, as such, is PRIVILEGED & CONFIDENTIAL. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document (and any attachments) in error and that any review, dissemination, distribution or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail and deliver the original message. To ensure compliance with requirements imposed by the IRS, we inform you that (a) any U.S. tax advice in this communication (including attachments) is limited to the one or more U.S. tax issues addressed herein; (b) additional issues may exist that could affect the U.S. tax treatment of the matter addressed below; (c) this advice does not consider or provide a conclusion with respect to any such additional issues; (d) any U.S. tax advice contained in this communication (including attachments) is not intended or written to be used, and cannot be used, for the purpose of promoting, marketing or recommending to another party any transaction or matter addressed herein, and (e) with respect to any U.S. tax issues outside the limited scope of this advice, and U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of avoiding tax- related penalties under the Internal revenue Code. 3/27/2007 Page 1 of Stephen Miles From: Stephen Miles [smiles @mileslawgroup.com] Sent: Tuesday, March 06, 2007 6:25 AM To: 'gardnerncy @aol.com' Subject: March 13, 2007 NBBC Use Permit Hearing Councilwoman Gardner, My name is Stephen Miles and I am a land use attorney representing the Newport Beach Brewing Company. As you may know, for several months the City of Newport Beach has been investigating the operations of the Newport Beach Brewing Company ( "NBBC ") and determined that there was a need to modify certain conditions of the Use Permit that NBBC has held for the past 12 years. The General Manager of NBBC, Mr. Jerry Kolbly, and I would appreciate the opportunity to meet with you over the next week and prior to the March 13, 2007, hearing regarding the appeal of the Planning Commission's unanimous approval of a modified Use Permit for NBBC. Tentatively, we would be able to meet with you for breakfast or lunch if that would be your preference. In preparation for our meeting, I would like to provide you with a little bit of background and outline what NBBC will be asking for at the hearing. While NBBC is not the Appellant, the position of the Brewing Company has remained that the Use Permit modifications are voluntary and that the City does not have the authority, under the circumstances and evidence presented by the City, to unilaterally modify the conditions. At the Planning Commission hearing, NBBC was asked to agree to condition modifications beyond those that they had worked out with City staff prior to the hearing. As a result, NBBC has a concern with one of the modified conditions approved by the Planning Commission. In addition, NBBC has one modest request that they believe is both fair and appropriate given the operational changes that NBBC has implemented thus far. BACKGROUND While somewhat unclear, staff claimed the basis for the initial investigation was a complaint lodged by the "Cannery Village Concerned" — an entity claiming to represent numerous residents of the Cannery Village Lofts constructed adjacent to the Brewing Company. To make a long story short, the Newport Beach Police Investigation Report (the "Report") confirming the absence of any violations of the Use Permit conditions is set forth as Attachment 1 to the NBBC memo submitted to the Planning Commission (attached hereto). The Report, along with several testimonials provided by the Police Department, further confirms that the amount of Police incidents caused by or associated with NBBC's operations is far less than similar establishments in the area and is undoubtedly reasonable under the circumstances. The Report also confirms that there was no form of increase in incidents (actual, reported, or otherwise) at or associated with NBBC that would even justify an investigation. Through multiple public hearings and several months of working with City Staff and the neighborhood, NBBC has confirmed several matters. First, no legitimate complaint ever existed that warranted a review and substantial modification of the NBBC Use Permit. Nevertheless, NBBC volunteered to make modifications to their business operations to improve their operations and to simply be a good neighbor. NBBC's voluntary actions were in good faith and at a significant cost. Second, a handful of individuals claiming to represent the Cannery Village are the real complainants in this matter, rather than the fictitious "Cannery Village Concerned." Namely, Bruce Low, a loft owner, and Kevin Weeda, the appellant and developer of the Cannery Village Lofts, are the two individuals that have continued to oppose NBBC's historical operations and have claimed to represent the Cannery Village community. Noting that complaints and correspondence were being submitted by Cannery Village Concerned to the City unsigned, the City (Planning Commission and Staff) asked Mr. Low and Mr. Weeda to verify who they represent and to have an individual sign future correspondences if they are to be considered by the City. Mr. Low and Mr. Weeda never verified their alleged representation of the Cannery Village residents. In fact, Mr. Low didn't even testify at the January 2007 Planning Commission hearing and Mr. Weeda wasn't present at the hearing. While Mr. Weeda wasn't present, didn't testify, and didn't lodge any information that was disclosed to the public or Planning Commission (to enable the public or Commission to even know what his interest or concern was as of January 2007), Mr. Weeda was granted the ability to appeal the matter to the City Council. Third, the noise complaints lodged by Kevin Weeda and his colleagues were merely a pretext for the furtherance 3/27/2007 Page 2 of 4 of Mr. Weeda's financial interest in acquiring the NBBC property for future mixed use loft development. Mr. Weeda has made several attempts to purchase the NBBC property to further his financial interest. Over a two year period the owner of the NBBC property (who also owned the Cannery Village Loft property sold to Mr. Weeda) has informed Mr. Weeda that the NBBC property is subject to a long term lease and not for sale. Fourth, the opposition's pretext is intended to prohibit NBBC and the City from working collaboratively together to address potential neighborhood concerns. Regardless of the concerns raised or what NBBC has voluntarily implemented with the City (e.g., aesthetic treatment and enclosure of the parking lot trash container; line relocation to eliminate noise perceived by residents; added security and security planning beyond NBBC's hours of operation) the opposition remains. From the January 2007 hearing, the opposition clearly illustrated that nothing the City and NBBC voluntarily implemented would appease them. The opposition merely continues to equivocate over their concerns. For example: Action: NBBC relocates the line, eliminates potential noise, and the Report verifies the low and reasonable noise levels of NBBC's operations before and after the line relocation. Result: The opposition accuses the Police Department of a faulty investigation. At the January 2007 hearing, the Police Department testified that the Report was thorough and NBBC confirmed its open door policy for City inquiries. Action: NBBC relocates the line to eliminate potential noise. Result. The opposition waffles on their support of line relocation and claims that the line relocation results in safety concerns along the front of the building. NBBC and City staff previously worked together on the line relocation (which involved significant tenant improvements), to assure that the relocated line would not result in any safety hazards. Action: NBBC hires additional security and extends security hours beyond NBBC's hours of operation to address potential noise impacts and altercations in the parking lots caused by patrons of other establishments in the area that close at 2:00 a.m. Result: The opposition testes that NBBC's security policy (prohibiting minors unaccompanied by a parent from entering during late hours) is too "bar - like." The Planning Commission requires a condition that forces NBBC to admit patrons against their sound business judgment and in spite of NBBC's willingness to provide security to assist with potential neighborhood impacts caused by the City's unsecured Municipal Parking Lot. REQUESTED ACTION BY THE CITY COUNCIL 1) NBBC's Carding Policy NBBC holds both a Type 23 and Type 75 Alcoholic Beverage Control license. The Type 75 license permits the sale of wine, beer, and distilled spirits associated with the restaurant and brewpub. In 1999, the City Council amended the Use Permit to allow operation with a Type 75 license and reduced the Restaurant and Brewpub hours of operation for Sunday through Thursday (reduced from 11;30 p.m. to 11:00 p.m.). The lion's share of the Use Permit conditions remained unaffected from the original approval by the City Council in 1993. Regardless of the type of license held, NBBC has always operated under a policy that a conservative approach to dealing with underage patrons is the safest approach. Under the adage of "better safe than sorry," when NBBC is crowded during the later hours of the evening (typically on weekends), NBBC Security will card patrons at the door and prohibit minors that are unaccompanied by a parent from entering the Restaurant/Brewpub. Based on: (1) the Report; (2) further Police Department testimony; (3) direction from the State Alcohol Training Program (LEADS training) that NBBC employees and owners completed per the mandate of the City; (4) recent direction given by the Police Department to restaurant owners at stakeholder meetings sponsored by the City, and; (5) evidence that other restaurants in Newport Beach and other restaurant/brewpubs in Southern California operate under similar policies, City staff agreed with the wisdom behind NBBC's policy and did not recommend modifying the Use Permit to affect their Carding Policy. At the Planning Commission hearing, based upon a theory that the Carding Policy is too "bar - like," the Planning Commission forced NBBC to craft a condition (from the podium), that would permit minors to enter the Restaurant/Brewpub during all hours of operation. The condition essentially states that NBBC cannot prohibit a minor from entering the Restaurant/Brewpub solely based on age. NBBC would prefer to remain realistic on the issue and would ask that the City Council rescind the modification and permit NBBC to operate its business as it has done so for 12 years in a manner that does not add to the risk of underage drinking and driving. The entire basis for the Use Permit review was an unfounded allegation of unreasonable line noise, parking lot noise, and 3/27/2007 Page 3 of 4 boisterous activities from both the NBBC parking lot and adjacent Municipal Parking Lot. NBBC addressed the potential for noise from the rear of its building by relocating the line to the front of the building. The Report otherwise found that no unreasonable noise exists at NBBC. NBBC is also volunteering its security beyond its current hours of operation to observe and respond to any parking lot issues that may arise from patrons of other restaurants and bars that close several hours after NBBC closes. Any legitimate noise concern has been addressed and rectified and now noise has a far lesser potential to be an issue for the community. NBBC's Carding Policy is not related to a legitimate concern of the neighborhood. In contrast, modification of the Carding Policy will only increase NBBC's liability associated with having to police unaccompanied minors in a crowded Restaurant/Brewpub. 2) Extended Weekday Hours NBBC closes at 11:00 p.m. on weekdays (Monday through Thursdays). In contrast, numerous bars and restaurants in the immediate area, that use both NBBC's parking lot and the adjacent unsecured Municipal Parking Lot, close at 2:00 a.m. everyday. Specifically, Malarkey's, Cassidy's, Rudy's, Woody's Wharf, Blue Beet and Newport Kantina are permitted to operate until 2:00 a.m. everyday. NBBC would respectfully request, with the voluntary operational changes that have already been implemented by the RestauranttBrewpub, that their weekday hours of operation be extended to 11:30 p.m. — a reinstatement of the hours of operation that the City Council approved in 1993 without the several operational improvements presently implemented by NBBC. Practically, an additionally 30 minutes on weekdays will have no affect on the existing physical conditions for the mixed -use neighborhood. Overall, the conditions will remain greatly improved through NBBC's voluntary measures that have eliminated the potential for noise and added security to the parking lots. Until the various establishments in the area, who's patrons use the Municipal Parking Lot (and NBBC's parking lot well after NBBC is closed), are required to close well before 2:00 a.m., extending NBBC's weekday hours of operation to 11:30 p.m. is inconsequential. Financially, however, with NBBC assuming significant new costs with the revised Use Permit conditions, the additional 30 minutes of operation Monday through Thursday would allow NBBC to recoup those costs in sales revenue. To remain completely reasonable and fair about the issue, NBBC respectfully proposes a condition that would keep NBBC consistent with the other establishments in the area. For example, the hours of operation condition could be drafted so that the additional 30 minutes would expire when any other existing establishment with a 2:00 a.m. weekday closing is required to close at 11:00 p.m. CONCLUSION I sincerely hope that you will see the values of the many voluntary measures that NBBC has implemented to address any real aesthetic, noise, or security concern raised by the community. NBBC understands that their interest is well served by being a great neighbor. Moreover, NBBC has a local and National reputation to uphold with respect to its operations, the quality of food it serves, and the award - winning quality of its handcrafted beers. NBBC wants to get to the next chapter of a long- standing, mutually beneficial relationship with the City. Unfortunately, throughout the City's Use Permit review process, no good deed went unpunished. NBBC firmly believes that the City was initially asked to investigate NBBC's operations more so because of the financial interest of a few persuasive individuals and less so because of potential negative impacts to the neighbors cause by NBBC's operations. As a result, the Planning Commission decided to exercise NBBC's pure business judgment by instituting its own operational policy concerning the admittance of patrons. More importantly, however, NBBC feels that the Planning Commission's direction is unsound in light of the grave importance of our Nation's public policy to prohibit underage drinking. What benefit does the Planning Commission's approach provide the City and is it worth potentially exposing both NBBC and the City to additional liability based on the imposed regulation? As NBBC cannot see any benefit to the condition, NBBC respectfully requests the City Council's rescission of the condition. In addition, from an equitable and practical perspective, NBBC respectfully seeks the reinstatement of the 11:30 p.m. closing time for weekdays. The result of the extension is a total of two hours of operation per week that will permit NBBC to recoup costs associated with the increased operational costs of the modified Use Permit conditions. Thank you for your consideration of this information and NBBC's requests. We look forward to the opportunity to meet with you and to discuss these issues further. Take care, - -Steve Stephen M. Miles, Esq. 3/27/2007 Page 4 of 4 MILES • LAW GROUP P.C. 9911 Irvine Center Drive, Suite 150 Irvine, CA 92618 office 949.788.1425 mobile 714.393.3389 fax 949.788.1991 SMiles@MilesLawGroup.com IMPORTANT: The information contained in this e-mail is intended only for the personal and confidential use of the recipient(s) named above. This message maybe an attorney- client communication and. as such. is PRIVILEGED & CONFIDENTIAL. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have recelved this document (and any attachments) in error and that any review, dissemination. distribution or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail and deliver the original message. To ensure compliance with requirements imposed by the IRS, we Inform you that (a) any U.S. tax advice in this communication (Including attachments) is limited to the one or more U.S. tax issues addressed herein; (b) additional issues may exist that could affect the U.S. tax treatment of the matter addressed below; (c) this advice does not consider or provide a conclusion with respect to any such additional Issues; (d) any U.S. tax advice contained in this communication (including attachments) is not intended or written to be used, and cannot be used, for the purpose of promoting, marketing or recommending to another party any transaction or matter addressed herein, and (e) with respect to any U.S. tax issues outside the limited scope of this advice , and U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of avoiding tax-related penalties under the Internal revenue Code. 3/27/2007 MILES • LAW GROUP A PROPSSSIONAL CORPORATION LANn Ues 9911 IRVINE CEMrER DRIvR, Surm 150 • IRVINE, CALIFORNIA 92618 ENVIRONMENT. (949) 788 -1425 ENTITLEMCNT FAx: (949) 788 -1991 SMI LRs*NI1l:EsLA WGRORP.com FOR INCLUSION IN THE ADMINISTRATIVE RECORD OFPROCEEDINC MEMORANDUM TO: CHAIRMAN COLE HONORABLE MEMERS OF THE PLANNING MR. JAMES CAMPBELL, ASSISTANT PLANNING DIRECTOR MR. AARON HARP, ASSISTANT CITY ATTORNEY ,FROM: STEPHEN M. MILES MILES • LAW GROUP, P.C. RE: NEWPORT BEACH BREWING COMPANY USE PERMIT AND OPERATIONS REVIEW DATE: JANUARY 4, 2007 N I. INTRODUCTION AND SUMMARY For approximately eleven months, staff and the Newport Beach Planning Commission have been reviewing both the operations of the Newport Beach Brewing Company C"NBBC ") and various permit conditions held by NBBC to operate a restaurant and brewpub. Two previous public hearings have been held by the Planning Commission. First, on May 4, 2006, the Planning Commission held an informational hearing on NBBC's Use Permit No. 3485 (the "Use Permit's following certain complaints to the City of Newport Beach about NBBC. Next, on August 17, 2006, a review of the Use Permit was conducted and extensive testimony was heard about the concentration of bars in the area and various residential concerns with late night pedestrian activity in the area. . Chairman Cole January 4, 2007 Page 2 In addition to the Use`Permit, NBBC holds Coastal Development Permit No. 5 -93- 137 C'CDP Permit ") and both 'a Type 23 and Type 75 Alcoholic Beverage Control license. The Type 75 license permits the sale of wine, beer, and distilled spirits associated with the restaurant and brewpub. In 1999, the City Council amended the Use Permit to allow operation with a Type 75 license and specifically reduced the Restaurant and Brewpub hours of operation for Sunday through Thursday (reduced from It 30 p.m. to 11.00 p.m.). The lion's share o£ the Use Permit conditions remained unaffected from the original approval by the City Council in 1993. The initial complaint and complainant that commenced the review of the Use Permit has received little review or scrutiny during these proceedings. Testimony from Officer Cosylion and Commissioner McDaniel indicates that a January complaint letter from "residents of Cannery Village" resulted in the February 2006 Code Enforcement investigation of NBBC. (See, 8/17 .Minutes, pp. 23 -24.)J While the Code Enforcement investigation found no actionable violation of the Use Permit, voluntary measures have been undertaken by NBBC (including outreach to the residents of the Cannery Village), in an effort to improve their operations in a neighborly manner. NBBC is also pleased to note that they have reached consensus with City staff on a set of additional and modified conditions to the Use Permit after several months of hard work with staff. NBBC reviewed proposed conditions, provided commentary to Citystaff, met with City Planning on several occasions, and also met with Mr. Low to confirm that he had no remaining complaints about NBBC's operations. That NBBC's voluntary efforts (1) addressed the concerns raised by "nearby residents, property owners and local. business owners" (Staff Report, p. 1.) and (2) verified NBBC's compliance with Use Permit conditions, was ultimately confirmed by the November 3, 2006, Investigative Report conducted by the City of Newport Beach Police Department ( "Investigative Report "). A copy of the Investigative Report is attached hereto and incorporated herein by this reference. While NBBC will always remain cognizant of legitimate concerns lodged by its neighbors and will continue to improve its operations in a successful manner, NBBC questions the veracity of the initial complaint lodged with the City that commenced these proceedings. While specificresidents of the Cannery Village will certainlyhave legitimate concerns with noisc emanating from the vicinity of the NBBC parking lot and the adjacent municipal parking lot, NBBC believes that the opposition led by the Cannery Village Concerned was equally motivated by financial interests. Mr. Kevin Weeds and Mr. Bruce Low have held themselves out as the leaders of the ".`Cannery Village Concerned" — andallegedly represent upwards of fifty Cannery Village residents. Todate,no evidence has been provided to this Commission that verifies the existence of a bona fide association or the actual residents that Mssrs. W eeda and Low actually represent. Mr. Weeda, who has testified on several occasions about the NBBC Use Permit, has a distinct pecuniary interest in seeing NBBC's operations fail. On several occasions over the past two years, Mr. Weeds has approached the owners of the NBBC property ( Fainbarg and Feuerstein) seeking to acquire the parcel. (See, Declaration of Mr. Irving Chase). Fainbarg and Feuerstein previously owned various properties in Cannery Village before selling them to Mr. Weeda. (Id.) Despite his persistent inquiries, the owners of the NBBC property have informed him that the NBBC parcel is subject to along term lease and is not for sale. (Id.) Chairman Cole January 4, 2007 Page 3 II. VOLUNTARY ACTIONS TAKEN AND IMPLEME,NTEII BY . THE NEWPORT BEACH BREWING COMPANY In light of the direction given by this Commission on August 17, 2006, and because NBBC takes great pride in being apart of the Newport Beach conummity, several voluntary actions have been takenbyNBBC to continue the improvement of its restaurant and brewpub operations. I. Line .Relocation, In coordination with the City, NBBC has administered a new entrance from the front of the building that eliminates any queuing and loitering in the NBBC parking lot. As observed by the Investigative Report, the new entrance successfully eliminates noise that may otherwise be detected by the Cannery Village residents that purchase lofts directly adjacent to the NBBC parking lot. II. Security Plan and Security Guard Presence. Employment of up to 5 Security Guards with a primary function of controlling and patrollingthe NBBC parking area until 30 minutes after closing. The specific duties currently undertaken by NBBC Security Guards will be memorialized in a Security Plan that will be presented to the City and the Police Department. Key elements of the NBBC Security Plan include: a. Noise abatement through notification of patrons. b. Implementation of LEADs concepts — identification review to eliminate risk of underage drinking. c. Parking area enforcement of noise restrictions and nuisance activity; documentation of noise issues and nuisance activity from the municipal parking lot acid ancillary public areas (streets and alleys). d. Response to Cannery Village complaints and concerns and 'coordination with the Newport Beach Police Department. t7 III. Bottle Recycling Program. NBBC has implemented a bottle recycling program that collects bottles inside the restaurant to eliminate noise. Also, the use oflarge, deliverable storage containers eliminates the "dumping" of glass and its, associated noise. IV. Trash Dumpster Area. NBBC submitted architectural design plans to the City for an enclosed and covered trash dumpster area. The enclosure will be locked and secure. V. Alcohol Tratning. All NBBC owners, operators, and employees have successfully completed a State certified LEADs program and will require all future employees to complete the LEADs program. NBBC also remains active with the City.of Newport Beach Police Department and attended the business program hosted last month that focused on the prevention of underage. drinking. Chairman Cole January 4, 2007 Page 4 .III. MODIFICATION AND REVOCATION OF IJSE PERMITS N13BC is confident that the Commission will recognize the voluntary efforts undertaken byNBBC and, taken in conjunction with the conclusions of the Investigative Report, will conclude that the draft Use Permit conditions proposed by City staff are well- reasoned and effective in addressing legitimate concerns raised during these proceedings. NBBC is in agreement with the draft Use Permit conditions finalized by City staff on December 26, 2006. However, NBBC's legal .position remains that no present conditions exist that warrant modification or revocation of the Use Permit. Substantial evidence u1 the record and the City's evidentiary findings in adopting the Cannery Village Specific Plan indicate that NBBC's preexisting operations are consistent with the surrounding land uses and that no nuisance conditions exist. The investigative reports conducted by the City and under the City's direction confirm that no extraordinary incident or complaint is associated withNBBC and that it is operating with fewer incidences than other similarly- situated establishments. Moreover, the evidence presented by the City confirms that NBBC remains in substantial compliance with the Use Permit conditions. Furthermore, the majority of testimony presented on August 17, 2006, confirms that a heavy concentration ofbars exist in the vicinity ofthe Restaurant and Browpub. These establishments close later than NBBC and the patrons of these bars utilize the municipal parking lot within the Cannery Village. In an effort to rectify the issues emanating from the municipal parking lot, the NBBC Security Plan mandates that security personnel remain on the clock for 30 minutes beyond closing to monitor both the NBBC parking lot and adjacent municipal lot, alleys and sidewalks to address pedestrian activities that maybe disruptive to the Cannery Village. (See, Declaration of JerryKolbly.) The Security Plan also allows NBBC to properly address impacts to the Restaurant and Brewpub and surrounding Cannery Village caused by the residents of the Cannery Village. (Id. [Attendees of Cannery Village party utilizing and littering NBBC's parking lot].) A. Goad Hill Tavern The seminal decision on revocation and modification of use permits is Goat H111 Tavern 00ty of Costa Mesa (1992) 6 Cal.AppAth 1519. Like the case athand, the Goat I1111 Tavern Decision . involved complaints from residents abutting the parking lot of the bar about noise, trash, and drunken behavior during late hours of operation. (Id. at 1524.) In contrast to the evidence before the Planning Commission, however, the City. of Costa Mesa provided extensive evidence through a staff report that "summarized 19 reported police incidents occurring at the tavern between August 1990 and November 1990. They included incidents in the parking lot and complaints the tavern exceeded its capacity and its patrons were drunk in public." (Id. at 1524 -25.) Notwithstanding the large number of incidents over a four month period, the City of Costa Mesa's preliminary action of limiting the tavern's hours of operation was stayed by the trial court and ultimately the Court of Appeal affirmed the trial court's grant of a writ of mandate against the City. (Id. at 1523, 1532.) Chairman Cole January 4, 2007 Page 5 The Court of Appeal held that a use permit, once issued, becomes a fundamental vested right that cannot be unpaired absent a showing of either a failure by the permittee to comply with the reasonable conditions of the permit or a compelling public necessity. (Id. at 1530.) "Once a use permit has been properly issued the power of a municipality to revoke it is limited. Of course, if the permittee does nothing beyond obtaining the permit it may revoked. Where a permit has been properly obtained and in reliance thereon the permittee has incurred material expense, he acquires a vested property right to the protection of which he is entitled." (Id.) Because the Use Permit is a fundamental vested right held by NBBC, an administrative decision that substantially affects that fundamental vested right is reviewed under the independent judgment standard. Different than the traditionally deferent standard of review for most land use decisions, "the trial court must exercise its independent judgment on the evidence and find an abuse of discretion if the findings are not supported by the weight of the evidence." (Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519, 1531, citing Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; See Cal. Code Civ. Proe. § 1094.5, subd. (c).) The grant of the writ of mandate against the City of Costa Mesa was largely based on the type of evidence presented at hearing: 1) Several witnesses wrote or testified favorably to Goat Hill Tavern. 2) Police records showing the number of incidents reported at the tavern were less than at most other bars and coffee shops in the vicinity. 3) No showing to distinguish complaints about Goat Hill Tavern from other possible causes, including other bars and other pedestrians that frequented the area. While the City of Costa Mesa was unsuccessful in substantially modifying the tavern's use permit and unsuccessful in revoking the use permit, the evidence presented by the City of Costa Mesa is far more compelling that the evidence at hand. There, nineteen reported police incidents occurring at the tavern in a four month period was insufficient evidence to impair a vested right. Here, no .police incidents are attributable to NBBC. (See, Investigative Report attached hereto.) Also, the evidence presented to the Planning Commission has the similar error in failing to distinguish complaints about NBBC from other possible c&ses like patrons of bars in the area that close afIter NBBC, other patrons that use the NBBC parking lot or municipal parking lot, or pedestrians passing through the parking lots in a mixed use community. Based on the holding and evidence presented in the Goat Hill Tavern Decision, the City has insufficient grounds to modify the conditions of the Use Permit. Nevertheless, NBBC has voluntarily conceded to several new conditions and condition modifications in an effort to improve its operations and for the betterment of the community. B. Condition Na 6 While no modification is being proposed to Condition No. 6, NBBC believes that the following analysis of Condition No. 6 is warranted. While NBBC has complied with Condition No. 6 without incident since its inception, the Planning Commission is now responding to a recent allegation that Condition No. 6 may be in Chairman Cole January 4, 2007 Page 6 conflict with Special Condition No. 1 of the Coastal Development Permit. Condition No. 6 is -a9l in conflict with Special Condition No. I or the recorded Deed Restriction that memorializes Special Condition No. 1. Since July 1993, Use Permit Condition No. 6 has stated that: "The net public area of the restauran0rewpub, which Is devoted to daytime use Monday through Friday (prior to 5:00 p.m.), shall be limited to 1,500 square. feet. The balance of the net public area shall be physically closed off to the public by a fixed barrier and shall not be used until eer 5:00 p.m. daily. " Condition No. 6 clearly states that the 1,500 square feet restriction applies Monday through Friday. In contrast, Coastal Development Permit No. 5 -93 -137 (granted on July 15, 1993) (the "CDP") is more generalized, less specific, and does not specify which days the public area use restriction is applicable. Special ConditionNo. I provides instead that: "Prior to issuance of the Coastal Development Permit, Me applicant shall execute and record a deed restriction, in a /form] and content acceptable to the Executive director, which shall provide that no more than 1,500 square feet of service area of the subject restauramArewpub shall be open before 5: 00 p.m. The document shall run with the land, binding all successors and assigns, and shall be recorded free of prior liens. " A deed restriction parroting the CDP language was recorded on January 19,1994 (Doc. #94- 0038769 dated January 19, 1994, as required by CDP Special Condition No. 1. . Additionally, Special Condition No. 3 to the CDP expressly states that the City ofNewport Beach shall submit a letter to the Executive Director of the Coastal Commission that indicates the City's enforcement of Special Condition 1. Like the recording of the Deed Restriction, this prerequisite explains that: "Additionally, prior to issuance of the Coastal Development Permit, the applicant shall submit, for the review and approval of the Executive DireNor, a letter from the City of Newport Beach indicating that the City agrees that the City's Code Enforcement will enforce the [publie]service area restrictions described in [special] Condition 1." This is a highly personalized Special Condition that exclusively relates to an express provision that the City's Code Enforcement will enforce the public service area restrictions. The Coastal Commission deferred enforcement of Special Condition No. I to the City of Newport Beach, further indicating that the City's Use Permit Condition No. 6 is controlling — especially when the issue is merely one of interpretation thirteen (13) years after the fact. The Coastal Commission acquiesced to the City's specific language regarding the service area restrictions upon their receipt on October 13, 1993, of the Special Condition No. 3 Letter from the City of Newport Beach. (See, Stanson v. ,San Diego CoastRegtonal Com. (1980) 101 Cal.App.3d 38, 50.) That letter_ starts by saying: Chairman Cole January.4, 2007 Page 7 "As requested in the special conditions for the subject Coastal Permit Application, this letter is provided for the purpose of confirming the action of the City Council of the City of Newport Beach relative to its approval of Use permit No. 3485 (Revised) ... In summary, the City Council's action as it relates to the Coastal Commission's Special Conditions,,ineluded the following: 1. The "net public area" of the restaurantlbrewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 p.m.) shall be limited to 1,500 sq.ft. The balance of the "net public area" shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m. daily." The letter continues by noting that the property shall pay for 29 in-lieu parking spaces in the Cannery Village Municipal Parking Lot on an annual basis for the nighttime operation (after 5:00 p.m.). In conclusion, the letter confirms that disclosed conditions have been established as conditions of Use Pen-nit No. 3485 and that the City will enforce said conditions in accordance with Chapter 20.80 of the Municipal Code. A full copy of the October 13, 1993 is attached hereto and incorporated by this reference. As a final note, because .Mr. Low has claimed that "the Coastal Commission has indicated that the restriction applies daily," this Commission should be aware that the CDP also includes the following standard condition that governs the interpretation of Special Condition No. 1: "Interpretation. Any question of intent or interpretation of any condition will . be resolved by the Executive Director or the Commission." Accordingly, it is not appropriate for anon -party to the CDP to propose a creative interpretation that results in a conflict and then suggest that the permittee must seek a CDP modification. Instead, if a question of interpretation of a CDP condition arises (i.e., over the past thirteen years), the Executive Director can resolve the question adntinistratively. In light of the October 13, 1993, letter received by the Coastal Commission in compliance with Special Condition No. 3, it makes perfect sense that the Executive Director has not weighed in on this "issue" or otherwise sought to bring it to the attention of the Coastal Commission. et Condition No. 6 should not be modified to reflect a restriction on weekends. Condition No. 6 clearly applies the use area restriction to weekdays. Moreover, with the other Use Permit modifications in place, Condition No. 6 is not a potential source of a community impact and hasn't been alleged as the source of a residential impact. Now that previous allegations have been addressed, Mr. Low has made the asserted that the 1,500 square feet restriction is a "huge problem." In 1993, the City clearly informed the Coastal Commission in writing that the 1,500 square feet restriction applies Monday through Friday and would be so enforced. Only the Executive Director has the present authority to interpret Special Condition No. 1, To the extent that such an interpretation is needed, it is unlikely that after 13 years the Executive Director would find Condition No. 6 inconsistent with Special Condition No. 1 and Special Condition No. 3, . ATTACHMENT "1" CITY OF NEWPORT BEACH POLICE (DEPARTMENT November 3, 2006 TO: Sgt. R. Vallercamp FROM: Detective D. Stark SUBJECT: INVESTIGATIVE REPORT - NEWPORT BEACH BREWING COMPANY Case Initiation: On 8/22/06, Assistant City Attorney Aaron Harp asked N13PD to assist his office and the Planning Commission in regards to the Newport Beach Brewing Company (hereinafter referred to as NBBC). Mr. Iimp identifiled nine different questions regarding the NBBC abiding by their Conditional Use Permit (CUP) and asked the Police Department to investigate. Investigative Results: The Special Investigations Unit of the N &PI) reviewed Patrol related calls from the CAI:? System and coordinated with Patrol Officers and shift supervisors to increase their awareness and the need for documentation of incidents that involve the N813C. There have not been any Patrol related problems noted in the last two months. Most Patrol Officers commented that the NBBC is rely a problem, Undercover detectives from Special Investigations visited the NBBC and conducted surveillances of the surrounding area on six separate occasions to help answer the fbllowing questions. as Questions 1 - 9: Question ill dealt with the possibility of the NBBC being operated as a bar (rather than a restaurant) on specific days and at specific times, especially between 2200 hours and 0100 hours on Friday and Saturday Nights. The answer to this is very subjective and probably inconclusive. The NBBC did have on- duty security employees working. Security employees were present the entire time during each evening visit by Detectives (8 -31 -06, 9 -1 -06, 9 -2.06, 9 -3 -06, 9 -8 -06) One security employee was monitoring the entrance and one or two others were circulating throughout the restaurant. On 9/8(06, we had a Police Cadet who was 20 years old attempt to enter by herself after 2200 hours. When the door security employee learned she was under 21, he apologized and said, "We don't let anyone under 21 inside after 2200 hours unless you're with a parent or other adult." The staff kept the crowd /occupancy at a reasonable level. Even after waiting in line to enter (after 2300 hours on a Friday night), we found several tables available to sit at. They served their full menu (appetizers and entrees) until they closed at midnight. They did not have live entertainment, DPs or dancing. Question 02 inquired about the noise being generated by the restaurant. Investigating officers observed the entire exterior perimeter of the restaurant throughout the evening and night on five separate dates (Thursday, 8/31/06, Friday, 9/1/06, Saturday, 9/2/06, Sunday, 9/3106, and Friday, 9/8106). The only noise came from the patio area which bordered Newport Boulevard. The noise was from patrons talking (not from amplified music). The noise would be drowned out when multiple cars passed the location. The rear or bay side of the NBBC remained quiet and trouble free during the restaurant's hours of operation. The only door that remained open was the patio door which faced Newport Boulevard. All windows were kept closed and on one occasion (9/2/06 at about 2200 hours), when a patron opened the window, the security staff immediately responded and closed the window, The rear (bay side) doors, when being used as the entrance/exit, were kept closed except during ingress/egress of patrons. Question #3 asked It the NBBC had the proper signs posted inside the establishment. The Occupancy was clearly displayed on a large sign above the rear door (facing the bay) reading "Occupancy 160." This number is consistent with the occupancy certificate in our ABC file. Additionally, there were several signs clearly posted on the interior, side and rear of the exterior, requesting quiet and respect for the neighbors. Question 04 dealt with the exterior of the NBBC including the parking lot, sidewalk, alleys and surrounding areas. None of the detectives noticed any significant noise or disturbances attributable to the NBBC. During the late night hours, after the NBBC was closed, we noted several groups of people returning to their cars from the area of the intersection at Newport Boulevard agd 30th Street. These people would often have loud conversations, however, there was no loitering, drinking, public urination or other activities observed. The NBBC security staff was observed outside, monitoring their portion of the parking lot during and after closing time with a flashlight. Considering the exterior signs, closed windows, movement of the entrance after hours and patrolling of the rear parking lot, I would say that the NBBC is making a concerted effort to reduce noise and related problems for their neighbors. Question #5 asked if the Brewery Employees had received the proper certifications. On 9/6/06, Alcohol Beverage Control (ABC) Investigator D. Shaver gave LEAD Program training (Licensee Education on Alcohol and Drugs) to 17 NBBC employees. The LEAD Program is a voluntary prevention and education program for California retail alcohol salos licensees, their employees and applicants. The program length is 3 1/2 hours and the mission is to provide training on alcohol responsibility and the law. Another training class was offered on October 4th and 2 more employees attended. The 3 remaining employees who have not attended this class have been taken off the schedule until they complete the training. Question #F6 dealt with i°Calls For Services" Since. previous reports have been compiled prior to W10106, this report will address calls after 8/10/06. Five calls for service were associated with the NB.BC address from 8/10/06 to the present. One was a traffic stop by a Patrol Officer (unrelated to the NBBC). Another was a noise complaint by an anonymous caller which Patrol Officers cleared as unfounded. On 8/19/06 at about 0058 hours, Jill 1vlaroowitz called to report a large group of people yelling and screaming in the parking lot. Patrol Officers were dispatched at 0124 hours and arrived a minute later: The Officers cleared after advising that the NBBC was shutting down. It is unknown if the disturbance was still occurring when officers arrived. On 9/12/06 at about 0337 hours, Bruce .Low called in a noise disturbance regarding a grease recovery vehicle that was parked in the alley on the east side of the NBBC and actively pumping out grease. A .Patrol Officer responded at 0339 hours. I spoke with the responding officer (Dugan) who explained that he arrived as the grease truck had finished pumping. The noise made by the truck when he was present was minimal. Officer Dugan remained for about 4 minutes until the truck left. I was also forwarded an email regarding this disturbance written by resident Bruce Low which included photos. On 9/16/06, an anonymous male cell phone caller reported being assaulted by NBBC security. Patrol Officers responded and no assault was substantiated. The units observed that the caller was intoxicated and he left the area. The Officers cleared the scene logging an assist. Question #7 asks about the line to enter the restaurant. On the days when investigators entered the NBBC before 2130 hours, the entrance was on the bay /parking lot side of the restaurant. Depending on the night, sometime around 2130 to 2200 hours, the entrance would be moved to the Newport Boulevard side of the re*urant. Signs would be placed on the rear entrance doors telling patrons that the entrance was at the front of the building. They would also place a three foot tall folding sign on the ground in front of the rear entrance saying the same thing. Signs would also be affixed to the inside of the rear doors saying, "NOT AN EXIT." The NBBC would place line delineators along Newport Boulevard to organize and control patrons waiting in line. A restaurant security employee was at the front of the line monitoring the occupancy and checking ID's. Lines were observed on several occasions, usually after 2300 hours on Friday and Saturday nights. On a Friday night (9/8106) at 2300 hours, l waited in line for about five minutes prior to entry. When I was let Inside, there were still three unoccupied tables. Question #8 asked if litter was present in the parking lot. Undercover detectives visited the NBBC six times and numerous parking lot and perimeter checks were conducted. No one observed any trash or other discarded items that would draw their attention. Question #9 addressed CUP condition 06, a pmidlsiou that a portion of the restaurant remain closed prior to 5 p.m. (reduction in Not Public Area. Detectives also visited the NBBC during the lunch hour on Wednesday, 8/30106 at about t 130 hours. They noted that the area in the restaurant adjacent to the brew kettles was the only section open for the small lunch crowd. The other areas of the bar and restaurant were closed. On Sunday 10108/06, Detectives visited the NBBC, arriving at about 1230 hours. They noted that the restaurant was completely open with patrons occupying tables in all areas (no sections were closed ofd. When they arrived, they estimated that the restaurant was 70% full and when they left at 1430 hours it was 90% full. 'rho primary attraction that day was NFL Football. The rear, parking lot entrance doors remained closed when not being used for ingress/egress and no unreasonable noise was emanating from the establishment. ATTACHMENT "2" B Awil -00 01:36ps Frum�calltarnle Ccaotal Ms. Ms Mpg Vaughn California. Coastal Comm isslon 245 W., Broadway, MR 380 P. 0. Box 1450 Long Beach, CA 90802 +3020308004 T -283 'P.002/002 P-780 Do Subject: Coastal Permit Application No. 5.93 -137; Dear Ms Vaughn: OCT .131"5 CAUPORNIA COASTAL COMMAMON SOUTH COAST DISTRICT 2920 Newport Boulevard- As requested 'in the special conditions for the subject Coastal Permit Application, this letter is. provided for the purpose of_conftming the action of the City Council of the City of Newpnrtrl3each relative to its approval of Use Permit No. 3485 ( Revised). As indicated In the attwhed excerpt of the City Council minutes dated September 27,1993, the (3ly Council aproved'Use Permit No. 3485 (Revised) with the findings and subject to the c.c�ntllfiions set forth in the City Council staff sport so dated September 27, 1993. In sumarry, the City" Council's aetioi) as it relates to the Coastal Conu nissiores Special Condition% included the following: 1. The "net public area- of the restaurant/hrowpub, which i$ devoted to daytime use Monday through Friday (prior to S.,00 p.m.) shall be limited to 1,500 sgft. "The balanca of the "net public area" shall be physically clued off to the public by a fixed barrier and shall not he used until after.5:00 p.m. daily. 2. Tlie property owner shall pay for 29 in -lieu parking spaces in the Cannery Village Munici Parkins Lot on an annual basis for the nighttime operation (after 5:00 p m) o the restaurant /brewpub use as agreed upon by the Sales Agreement between the City and the property owner. " %uasmucb as the above conditions have been established as conditions of Use Permit No. 3485, the City of Newport Beach will inforce said provisions in accordance with the."Use Permit Procedures sat forth in Chapter 2.0.80.of the Municipal Code, It should be further noted that Item No. 2 above, is in keeping with the City CounciSa.acNaa rescinding its previous action which allowed the applicant the daytime use of IS-Reu parking in the Cannery Village Municipal Parking Lot. a, We hope that this information will be sufficient for your purposes, and should you have. any questions feel free to contact Mr. William Ward in our office, at 644 -3200. my truly yo J k7. I�WT R, Director meats . ...Qmonr� \u�p949Sda 0 I STEPHEN M. MILES (State Bar No. 185596) MILES *LAW GROUP 2 A Professional Corporation 9911 Irvine Center Drive, Suite 150 3 Irvine California 92618 Tel.ep�one:(949 788=1425 4 Facsimile: (949788 -1991 5 Attorneys for Permittee NEWPORT BEACH BREWING COMPANY, INC. 6 7 CITY OF NEWPORT BEACH 8 PLANNING COMMISSION PUBLIC HEARING 9 REVIEW OF NEWPORT BEACH BREWING COMPANY OPERATIONS 10 11 NEWPORT BEACH BREWING COMPANY Use Permit No. 3485 12 CDP No. 5 -93 -137 0 13 DECLARATION OF JERRY KOLBLY 14 CITY OF NEWPORT B BEACH Date: January 4, 2007 0 15 PLANNING OMMI Time: 6:00 p.m. . 0 16 17 oa 18 19 20 21 r) 22 23 24 25 26 27 28 -1- DECLARATION JERRY KOLDLY 1 Jerry Kolbly hereby declares: 2 3 1. I, JerryKolbly, am the General Manager ofthe Newport Beach Brewing Company. 4 I have been employed by NBBC for 1 I %z years and have personal and first hand knowledge of 5 every aspect of the Company's operations. 6 2. I have been present at the following public hearings before the Newport Beach 7 Planning Commission: May 4, 2006 and August 24, 2006. I have also attended several outreach 8 meetings with City officials and the asserted leaders of the "Cannery Village Concerned ". In 9 particular, I have met personally with Kevin Weeda, Joe Riess, Bruce Low, Billy Stade and 10 Drew Wetherholt to share with the Cannery Village the agreeable and voluntary measures that 1. I NBBC is willing to implement and has subsequently implemented. 12 3. On one occasion, on August 2, 2006,1 anet with the representatives of Cannery 0 H 13 Village along with Mr. Jun Campbell, City of Newport Beach, and our attorney, Stephen M. 14 Miles to discuss the operation modifications that NBBC desired to implement to address noise g 15 concerns raised by the Cannery Village. That particular meeting ended abruptly when Mr. Bruce 0 16 Low began displaying behavior of frustration by cursing at the NBBC representatives and aw 17 aggressively confronting our attorney. Other representatives of the Cannery Village Concerned a18 apologized for Mr. Low's behavior and we continued to discuss the issues with the Cannery 19 Village representatives. 20 4. Attached as Exhibit "A" to this Declaration is a real estate listing for Mr. Low's 21 Cannery Village residence. Mr. Low originally purchased his residenceAmMr.KevinWeeda, 22 a fellow member of the Cannery Village Concerned that has illustrated his financial interest in 23 acquiring the NBBC property. The asking price for Mr. Low's residence ($3,295,000.00) does 24 not appear to indicate any issue with the quiet enjoyment of his property. 25 5. Our next meeting with Mr. Low, on Thursday, November 30, 2006, was much 26 more productive. This meeting followed the issuance of the Police Investigative Report dated 27 28 2 R 0 F F o � 0 i� o P` 21 3 4 5 6 7 8 9 101 11 12 13 14 1.5 16 17 18 19 20 21 22 23 24 25 26 27 28 November 3, 2006, confirming the general absence of condition violations, absence of incidence, and absence of any potential noise impacts caused by NBBC operations. 6. Following the Planning Commission hearing on August 17, 2006, as the general manager for NBBC, I have overseen several actions taken in response to the direction of the Planning Commission. I believe that these actions address all the concerns that were raise by the public at the Planning Commission hearing. I feel that the actions taken address not only the potential noise impacts that NB13C operations may have on its neighbors, but, as important, the actions taken help address the impacts to the neighbors that are caused by the public generally. 7. Since September 1, 2006, NBBC has actively relocated the line that used to form at the parking tot entrance to the front of the building. This action has eliminated any potential noise, caused by NBBC patrons, that could be perceived by the Cannery Village Lofts. 8. On September 6, 2006, NBBC closed its operation to the public to enable every employee and owner of NBBC to complete a certified alcohol service education course referred to as "License Education on Alcohol and Drugs" ( "LEADs "). Every working employee and owner ofNBBC completed. the LEADs class. The certifications received by NBBC are attached hereto as Exhibit `B ". 9. On September 24, 2006, as part of NBBC's Security Plan, I prepared and submitted to each resident of the Cannery Village Lofts, a letter specifying a. phone number for the residents to call, if and when they have any safety concerns or any concerns with th e operations of NBBC or the utilization of either NBB C's parking lot or the municipal parking lot. To date, NBBC has not received any phone calls from the Cannery Village regarding any complaints or concerns. 10. On or about September 30, 2006, I received a copy of a letter addressed to the Newport Beach Planning Commission from Ms. Judy Leeper. The letter consists of testimony from a Cannery Village resident that, for 10 years, has lived adjacent to the NBBC parking lot without complaint. Ms. Leeper notes that noise concerns have always been worked out with NBBC and that the real problem is the public's use (as opposed to NBBC patron's use) of the r kilw.ft7_�YCiS�l�i7 1 77�I*011 Ali I NBBC and municipal parking lot. A copy of the letter is attached, hereto, as Exhibit "C." The 2 letter confirms the willingness of NBBC to address any noise complaints and further shows that 3 any potential noise issues have been rectified by the modification of the NBBC entrance. 4 11. On Saturday, October 7, 2006, .I spoke with Bruce Low's wife. She indicated that 5 she had called NBBC at or around 12:30 a.m. Saturday morning and was not successful getting 6 through. Later that day, Bruce Low's wife apologized for making an issue and explained that 7 she was overly concerned because she was.home alone. 8 12. On October 13,2006, 1 submitted engineered plans for the redesign and enclosure 9 of the NBBC trash bin located between NBBC's parking lot and the municipal parking lot. 10 Upon approval of the plans, NBBC, in conjunction with our landlord, stands ready to implement 11 immediate construction of the new trash enclosure. 12 13. In response to potentially unreasonable noise caused by the disposal of recycled 0 13 glass bottles, NBBC modified its Bottle Recycling Program. Now the collection of glass is 14 conducted inside the Restaurant and Brewpub to eliminate any noise for the adjacent residences. 3 r°, 15 Furthermore, the bottles on collected in transportable containers that are readily loaded from the 0 16 front of the building -- thereby eliminating transfer and disposal noise. w t3 17 14. For approximately fivemonths, from August2006 through December 2006,NBBC 0 a 18 has videotaped and taken noise measurements of the NBBC parking lot and municipal parking 19 lot. The general findings from the taping and measurements are that even when the NBBC lot 20 is full during hours of operation, the parking lot is quiet. On occasion, our Security Team has 21 observed loud and boisterous activity in the municipal parking lot after NBBC's hours of 22 operation. The source of the noise is from pedestrians arriving from other establishments alter 23 NBBC has closed. In addition, on occasion (e.g., September 16, 2006, at 1:00 a.m.) bottles being 24 picked up from Abe Restaurant have resulted in a very loud crashing sound. 25 15. On January 2, 2007, I generated a quarterly sales report for NBBC. Upon request 26 from the City, NBBC will make the sales report available to the City for review and inspection. 27 For the final quarter of 2006, alcohol sales accounted for 47.60 percent of total NBBC sales. 28 -4- DECLARATION OF RY KM LY EXHIBIT "A" v ,. � � �� -� i �" ..1 iy 5 °d�i..:,!1;. 3 1 N t.E khA.T I O,N A L, . : . L� I. . . . ! . ., ":. . �' . %% .1 .. ..., i . '.. . i., .. , , - ., , 'T . %i . : " . . ., w u it ......... ......... ......... IN .. .......... Aff, M nb . : . L� I. . . . ! . ., ":. . �' . %% .1 .. ..., i . '.. . i., .. , , - ., , 'T . %i . : " . . ., EXHIIBIT" "B" 0 a �® 41�A�tlljtE�n�,%cd�ffx I !!roc,r.'�° tiasnrrinnrir�'t�lut owe# Od a6veratp (,at((ruifr+'" . � Ar�i�tl�f[# }! �`+ �fF�U6i lik3it3M'8kllgd'i�Un�FLiRt -- « a r�p�n m�onra d s el anca�ra r .awwaiaixty �F°'. „s "4. i i � a^ '. .. .. .,:. > i �, �3,i. 1 ,d .,XS i ,r t'. t ... ,. . E, ar y� < y .. :. a .� !. e .G;g � t �� �.. t .; .t: _� .... {.:.. �F°'. „s "4. i i � a^ '. .. .. .,:. > ... ,. . ... , �. ..� :. EXHIBIT "C"' 1' September. 30, 2006 City of Newport Beach, Planning Commission. City lull 3300 Newport 131vd. Newport Beach, CA 926633884 Re: Newport Beach Brewing Company Use permit No. 3485 Dear Commission Members, I am writing In support of the Newport Beach Brewing Company and to Iet you know that I am in favor ofthe Brewing CompatX 9 use permit to remain as is and to not be modified. I have lived in the Cannery Village for 10 yeas and our property is located across the street fl'om the Brewery parking lot, and the Public parking lot. The Brewery has been a good neighbor and the manager has always tried to work with us whenever we have had a noise complaint. The Brewery was here long before the rest of us built and purchased our homes. They are a part of the neighborhood and Rankly we all chose to move into the environment of the C aMty Village. It is an °`urban' neighborhood and there is going to be noise. It would be the same environment if we ebose to build our loft style homes in downtown LA or M=hertten, Thai: was the draw for us. We chose the urban Loft style living as opposed to. a residential neighborhood. Since the most recent lofts have been built and moved into they of course have had to a4just to this environment, and once again I see the rnanagment team trying to make their neighbors happy by moving the entrance to the Newport Blvd. door instead of the parking lot so that there is leas noise. I strongly feel that if the Browery's use permit is modified or provoked nothing will have changed. The public parks in the both the Brewery lot and the public lot to matte their rounds to the restaurants in the area. The noise comes tt m the pars ft lots and so I feel that nothing will change just because the Brewery is ch uWA A The Brewery is One of the restaurants that our ftunily frequents and I would be sad to see It go. I am unable to attend the meeting on October 5th and so l wanted to voice my opinion In writing. Sarcetely, C��„ �� y Ixe er (South.�7aE_rod�o�n��, l9 30th Street Newport Beach, CA. 92663 949 -922 -9593 1 7- 1. , z a U o B U so �a a, I STEPHEN M. MILES State Bar No. 185596) MILES • LAW GROUP 2 A Professional Corporation 9911 Irvine Center Drive, Suite 150 3 Irvine California 92618 Telep�one: 949 788 -1425 4 Facsimile: (949) 788 -1991 5 Attorne for. Permittee 6 NEWPRT BEACH BREWING COMPANY, INC. 7 CITY OF NEWPORT BEACH 8 PLANNING COMMISSION PUBLIC HEARING 9 REVIEW OF NEWPORT BEACH BREWING COMPANY OPERATIONS 10 11 12 NEWPORT BEACH BREWING COMPANY Use Permit No. 3485 CDP No. 5 -93 -137 13 DECLARATION OF 14 IRVING M. CHASE CPfY OF NEWPORT BEACH 15 PLANNING COMMISSION Date: January 4, 2007 16 Time: 6:00 p.m. 17 18 19 20 21 22 23 24 25 26 27 28 1 DECLARATION OTIRVING M. CHASE 0 0 C�7 U a� • o N a d I Irving M. Chase hereby declares: 2 3 1: 1, Irving M. Chase, am the manager of S &A Properties, which manages the 4 property for Fainbarg and Feuerstein Properties — the owner of that property leased to the 5 Newport Beach Brewing Company (tbe "Property ") for the operation of their Restaurant and 6. Brewery. The Property is one of approximately 10 holdings owned and managed by S &A 7 Properties in Newport Beach, Perris, Costa Mesa, Campbell, Santa Clara, Tustin, and Camarillo. 8 The National holdings for S &A Properties are in California, Washington, Oregon, Nevada, 9 Arizona, Louisiana, Texas, and Florida. 10 2. Subsequent to the August 17, 2006, Planning Commission hearing concerning the I I Newport Beach Brewing Company permits, management for the Newport Beach Brewing 12 Company ( "NBBC ") arranged a meeting with S &A Properties to discuss several tenant 13 .improvements to be made by NBBC to address concerns raised by the Cannery Village and the 14 Planning Commission. 15 3. On or about August 24, 2006, I met with NBBC Management at the Property and, 16 together, we agreed to relocate the existing mailbox location for the Property to enable NBBC 17 to establish a new entry point to the Restaurant and Brewery from the front of the building rather 18 than from the parking lot. S &A Properties relocated the mailbox. 19 4. In addition, S &A Properties agreed to redesign the existing trash enclosure 20 between the Property's parking lot and the City's adjacent municipal lot. S &A Properties' 21 consulting architect designed the trash enclosure to include a roof and improved security and 22 submitted the final design to NBBC on September 21, 2006. Construction of the trash enclosure 23 can be readily completed within one week of design approval by the City. 24 5. Fainbarg and Feuerstein owned various properties in Cannery Village and sold 25 them to Mr. Kevin Weeda, a developer active in Cannery Village. Recently, Mr. Weeda has 26 approached S &A Properties to voice his interest in the acquisition of the Property. On at least 27 three separate occasions between 2004 and 2006, Mr. Weeda approached me and offered to 28 DECLARATION OF BRVING M. MA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q .. a n rnvr�aina Q UU4 purobase the Property. X informed Mr. Weeda oa each occasion that the property is subject to a long term lease and that the Property is not for sale. 1 declare under penalty of pe&ry under foregoing is true and correct. f� .ce 2br "7 N bated: aW,:e � 6 .3. i'vng I1 Abase State of California that the, v f 0 a� 0 • o a °a w 1 2 3 4 5 6 7 8 9 10 11 12 13 14 151 16 17 18 19' 20 21 22 23 24 25 26 27 28 STEPHEN M. MILES (State Bar No. 185596) MILES *LAW GROUP A Professional Corporation 9911 Irvine Center Drive, Suite 150 Irvine California 92618 Telephone: 949 788 -1425 Facsimile: (9493788 -1991 Attorneys for Permittee NEWPORT BEACH BREWING COMPANY, INC. CITY OF NEWPORT BEACH PLANNING COMMISSION PUBLIC HEARING REVIEW OF NEWPORT BEACH BREWING COMPANY OPERATIONS NEWPORT BEACH BREWING COMPANY Use Permit No. 3485 CDP No. 5•93 -137 DECLARATION OF ERIC BLAISDELL CITY OF NEWPORT BEACI4 PLANNING COMMISSION Date: January 4, 2007 Time: 6:00 p.m. ��1k�7a1I� [�]��[�)i�IC7C1�I31I \f.�1�7�1�1 w � t 1I 2 3 4 5 6 7 8 9 10 11 12. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Eric Blaisedell hereby declares: I . I, Eric Blaisedell, am the head of Security for the Newport Beach Brewing Company. I have been employed by Newport Beach Brewing Company since May 2006, 2. On Saturday, October 7, 2006, I was working the evening security shiftwhen Iwas approached by Mr. Bruce Low. Mr. Low conveyed to me that he felt that the noise concerns with the NBBC parking lot had been addressed with the relocation of the evening entry from the parking lot to the font of the Restaurant. 3. On Saturday evening, October 7, 2006,1 observed that Mr. Billy Stade hosted a party at his Cannery Village Loft located adjacent to the NBBC parking lot. Several of Mr. Stade's guests parked in the NBBC parking lot and municipal parking lot. Because of the noise caused by Mr. Stade's party and his guests, guests littering and loitering in the parking lots, and a guest that was observed exiting the loft and urinating on the front of the building, NBBC Security made several individuals leave the NBBC parking lot.. I declare under penalty of perjury under the laws of the State of California that the foregoing is hue and correct. Dated: January 4, 2007 rxc B aise c U, _2 DECLARATION OF ERIC BLAISEDELL Adit08 Aib*W Ct1WuRA'rioN dJ02SAooa ran _ dart.: ;wo io bn uer' Page 1 of 4 Stephen Miles From: Stephen Miles [smiles @mileslawgroup.com] Sent: Tuesday, March 27, 2007 10:52 AM To: 'Campbell, James' Cc: 'don2webb@earthli nk. net'; 'gardnerncy@aol.com'; 'Lesliejdaigle@aol.com'; 'm hen n527 @hotmail.com'; 'Keith CURRY'; 'Edward Selich';'parandigm @aol.com'; Jerry Kolbly Subject: RE: Appeal hearing Jim, My understanding is that written correspondence related to the Use Permit, whether with City staff, some, or all of the Commissioners or Councilmembers, qualifies as evidence that should be included in the administrative proceeding — especially in a quasi-judicial proceeding that requires formal findings such as the Use Permit review /revocation proceeding at hand. (See, e.g., Topanga Association for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 516 [bridging the "analytical gap between raw data and ultimate decision. "].) With that in mind, I thank you for forwarding the January 3, 2007, email to the City Council. I will be sure to have copies to present to Council this evening as well. Because the Staff Report includes the anecdotal reference to "contact" (by somebody at sometime) with the Coastal Commission, I feel that it is appropriate that we confirm that the City Council has all the information on the subject. This is the reason why I originally drafted the email to Mr. Low. Mr. Low is the motivating force behind the "contact" that you reference — which is the reason why after more than a decade there is suddenly an issue regarding the weekend use of a portion of the Restaurant/Brewpub before 5 p.m. Correct me if I'm wrong, but the current theory behind the parking inquiry is that there is now a potential parking problem associated with the weekend use of a portion of the Restaurant/Brewpub before 5 p.m. where the only new factor since 1995 is the construction of live -work lofts? The lofts provide additional pedestrians that use the Restaurant/Brewpub. Is it the theory that the residents of the Cannery Village Lofts (that are weekend patrons of NBBC) park in the NBBC lot? NBBC can document that the Cannery Village patrons walk to the Restaurant/Brewpub. Also, the area of the Restaurant/Brewpub that is closed before 5 p.m. on weekdays is a table area (not a bar area) of the Restaurant/Brewpub that generates significant food sales on the weekends. Eliminating that area from weekend use would result in a reduction of food sales relative to alcohol sales and is therefore counterintuitive to the Planning Commission's goal that NBBC increase relative food sales. As you know, the Coastal Commission staff person that you reference in the Staff Report was contacted before the October 1993 letter (required by Special Condition No. 3 of CDP 5 -93 -137) from the City to the Coastal Commission was found in the files. Also, the staff person's uninformed opinion is further irrelevant where the Executive Director is specifically charged with interpreting the Coastal Permit conditions. (See, CDP No. 5 -93- 137, Special Condition No. 1.). On a related subject, I submitted NBBC's Planning Commission briefing to each of the City Council members on March 13, 2007. Is that material an exhibit to the Staff Report? I'll forward those emails to your attention and will also have hard copies for distribution this evening. NBBC is very appreciative of your time and effort in preparing this unanimous Planning Commission action for City Council review on appeal. Thank you and I look forward to talking with you shortly to go over a few factual errors in the Staff Report. Take care, —Steve Stephen M. Miles, Esq. MILES • LAW GROUP P.C. 9911 Irvine Center Drive, Suite 150 Irvine, CA 92618 3/27/2007 Page 2 of 4 office 949.788.1425 mobile 714.393.3389 fax 949.788.1991 SMiles@MilesLawGroup.com IMPORTANT: The information contained in this e-mail is intended only for the personal and confidential use of the recipient(s) named above. This message may be an aHomeyclient communication and, as such, is PRIVILEGED & CONFIDENTIAL. 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To ensure compliance with requirements imposed by the IRS, we inform you that (a) any U.S. tax advice in this communication (including attachments) is limited to the one or more U.S. tax issues addressed herein; (b) additional issues may existthat could affect the U.S. tax treatment of the matter addressed below; (c) this advice does not consider or provide a conclusion with respect to any such additional Issues; (d) any U.S. tax advice contained in this communication (including attachments) is not Intended or written to be used, and cannot be used, for the purpose of promoting, marketing or recommending to another party any transaction or matter addressed herein, and (e) with respect to any U.S. tax issues outside the limited scope of this advice, and U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used. and cannot be used, for the purpose of avoiding tax related penalties under the Internal revenue Code. From: Campbell, James [mailto:]Campbell @city.newport- beach.ca.us] Sent: Tuesday, March 27, 2007 8:51 AM To: smiles@mileslawgroup.com Cc: Jerry Kolbly Subject: RE: Appeal hearing Steve, An addendum is not possible as the hearing is tonight. I would like to discuss your concerns as I am willing to correct factual errors if they do indeed exist in the staff presentation. I have a 9AM meeting outside of City Hall and I will call when I return later this morning. I do not believe that the 1/3/07 e-mail you sent to Mr. Low was within the exhibits given to the Council, but I will double check on that. Although you shared the e-mail with two Planning Commissioners, it was not introduced for the entire Commission's consideration at the hearing and I do not consider it part of the administrative record. I will forward it to the City Council, but given that the hearing is tonight, I would be prepared to present the issue if you feel that it is in your clients best interest. I will talk to you soon. The Cannery Village Concerned is the named appellant and Kevin Weeda's name appears on the appeal form filed, which is an exhibit to the report. Jim From: Stephen Miles [mailto :smiles @mileslawgroup.com] Sent: Monday, March 26, 2007 4:28 PM To: Campbell, James Cc: Jerry Kolbly Subject: RE: Appeal hearing Jim, How would you like us to address the factual errors of the Staff Report? Should we coordinate with you in hopes of an addendum or should we just point out the errors when we make or presentation? I'm not really sure how much talking we will be doing as we aren't the appellant and the Staff Report makes it pretty clear that the focus is on Cannery Village and their continuous allegations and arguments. I see that you have concluded that NBBC's open dining area on weekends prior to 5 p.m. is "in violation of Special Condition #1.' You also state that "California Coastal Commission staff was contacted" and that "CCC staff indicated that the Brewing Company could request a modification..." Because you don't provide any information on who contacted whom, when this contact occurred, and what information was available at the time of the contact, I would ask that you forward my email dated January 3, 2007, to Mr. Bruce Low, to the City Council. I 3/27/2007 Page 3 of 4 copied you on that email and I can forward it to you again if you do not have it (although it should be a part of the administrative record that is before the City Council). That email.explains the context of the "contact" that you reference and further explains how the parking issue (that is now a major issue on appeal) was little more than an afterthought. And yet you are proposing potential parking studies 13 years after - the -fact? Could you please verify what Exhibits are attached to the Staff Report and whether any of the information that I have submitted to you and the City Council is included as an Exhibit? Also, your Staff Report refers to a finding made by the Planning Commission. Could you please send me the Planning Commission's Resolution of Finding? Thank you. As a final note, the Staff Report references Mr. Low (based on the untimely letters that he submitted to the City) but omits the name of the actual Appellant -- Kevin Weeda. As the City has not confirmed who in fact makes up "The Cannery Village Concerned" (although you have asked for that confirmation), I think it is inappropriate for the Staff Report to omit the fact that Kevin Weeda is the Appellant in this matter. Although he failed to testify at the Planning Commission hearing when the Use Permit was acted upon, I would expect that he will be required to testify tomorrow as the Appellant. Take care, —Steve Stephen M. Miles, Esq. MILES • LAW GROUP P.C. 9911 Irvine Center Drive, Suite 150 Irvine, CA 92618 office 949.788.1425 mobile 714.393.3389 fax 949.788.1991 SMiles@MilesLawGroup.com IMPORTANT: The information contained in this e-mail is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attomey -client communication and, as such. is PRIVILEGED & CONFIDENTIAL. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document (and any attachments) in error and that any review, dissemination, distribution or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail and deliver the original message. To ensure compliance with requirements imposed by the IRS, we inform you that (a) any U.S. tax advice in this communication (including attachments) is limited to the one or more U.S. tax issues addressed herein; (b) additional issues may exist that could affect the U.S. tax treatment of the matter addressed below; (c) this advice does not consider or provide a conclusion with respect to any such additional issues; (d) any U.S. tax advice contained in this communication (including attachments) is not intended or written to be used, and cannot be used, for the purpose of promoting, marketing or recommending to another party any transaction or matter addressed herein, and (e) with respect to any U.S. tax issues outside the limited scope of this advice, and U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of avoiding tax - related penalties under the Intemal revenue Code. From: Campbell, James [mailto:]Campbell @city.newport- beach.ca.us] Sent: Friday, March 23, 2007 4:43 PM To: Jerry Kolbly; smiles @mileslawgroup.com Subject: Appeal hearing Please follow the link to the staff report for the appeal. Please forward this message to anyone interested. If you want a full copy of the report, please contact the City Clerk's office. See you Tuesday evening at the Council hearing. http:// newportbeach .oranicus.com /MetaViewer.phhp ?view id =16 &event id =15 &meta id =42693 James Campbell Senior Planner 3/27/2007 Page 4 of 4 949 - 644 -3210 - voice 949 -644 -3229 -fax IMPORTANT: The information contained in this e-mail is intended only for the use of the recipient(s) named above. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document (and any attachments) in error and that any review, dissemination, distribution or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail and deliver the original message. 3/27/2007 Pagel of 3 Stephen Miles From: Stephen Miles [smiles @mileslawgroup.com] Sent: Wednesday, January 03, 2007 11:12 PM To: 'Bruce j Low' Cc: 'eaton727@earthlink. net'; 'jwcole@trammellcrow.com'; 'Campbell, James'; 'dlepo@city.newport- beach.ca.us' Subject: RE: [Fwd: 31st Street Mixed Use Project] Mr. Low, Could you please verify the staff or board member(s) you are referring to when you say that "the Coastal Commission has indicated that the restriction applies daily." Are you relying exclusively on the solicitation from Karl Schwing in July 2006? Mr. Schwing responded as any staff member would when all the information was not accurately presented. Specifically, the October 13, 1993, letter received by the Coastal Commission in accordance with CDP Special Condition No. 3 was not discovered in their files and did not surface until August 2006 (after Mr. Schwing's email). NBBC is unaware of any Coastal Commission review or action on the Coastal Development Permit. As you know, for the Coastal Commission to make such an indication (an indication that is contrary to the October 13, 1993, letter received by the Coastal Commission in accordance with CDP Special Condition No. 3), it would need to do so in accordance with open meeting laws. Mr. Schwing does not and cannot speak for the Coastal Commission. Additionally, the Coastal Development Permit contains the following standard condition: "Interpretation. Any question of intent or interpretation of any condition will be resolved by the Executive Director or the Commission. " Please let us know if Mr. Peter M. Douglas, Executive Director of the California Coastal Commission, has made any indication about the Use Permit or if he has initiated an administrative action in accordance with the Standard Conditions of the Coastal Development Permit. Again, NBBC is unaware of any action taken by Mr. Douglas. If you would like, I could make an inquiry with the Coastal Commission to confirm that this is not an issue for the Coastal Commission. My contact is Meg Caldwell, the Vice - Chair. However, I question the wisdom in affirmatively seeking scrutiny of an issue when it is very dear that there has been no issue for the Coastal Commission for 13 years because of the procedure of CDP Special Condition No. 3 that was complied with by the City of Newport Beach. On a more important note, this is the first time that NBBC has heard from you that unrestricted weekend daytime use results in a "huge problem." While NBBC can't be held accountable for perceived parking shortages in the area, they are looking into future solutions and would be open to discussions with you about your views on the parking shortfalls in the area. I have the support of Fainbarg & Feuerstein to pursue development of the NBBC parking lot parcel in a way that could provide parking solutions. Fainbarg & Feuerstein is the owner of the NBBC parcel and is the entity that has consistently denied Mr. Weeda's efforts to acquire the NBBC parcel. While NBBC is dedicated to addressing parking issues, the City is not required to conduct traffic studies in 2006/2007 to defend a condition that was established 13 years ago. That would be equivalent to the City and Coastal Commission revisiting the parking requirements for the Cannery Village Lofts due to impact to NBBC's operations when your guests use the NBBC parking lot and adjacent municipal parking lot during late evening hours. You have conveyed to me your frustration with Coastal Commission requirements that have been imposed upon Mr. Weeda's projects. Surely you understand that the Coastal Commission isn't entitled to a second bite at the apple. Take care, - -Steve Stephen M. Miles, Esq. 3/26/2007 Page 2 of 3 MILES • LAW GROUP P.C. 9911 Irvine Center Drive, Suite 150 Irvine, CA 92618 office 949.788.1425 mobile 714.393.3389 fax 949.788.1991 SMiles@MilesLawGroup.com IMPORTANT: The information contained in this e-mail is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attomey -client communication and. as such, is PRIVILEGED & CONFIDENTIAL. If the reader of this message Is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document (and any attachments) in error and that any review, dissemination. distribution or copying of this message is strictly prohibited. If you have received this communication in error, please nobty us immediately by e-mail and deliver the original message. To ensure compliance with requirements imposed by the IRS. we inform you that (a) any U.S. tax advice in this communication (including attachments) is limited to the one or more U.S. tax issues addressed herein; (b) additional issues may exist that could affect the U.S. tax treatment of the matter addressed below; (c) this advice does not consider or provide a conclusion with respect to any such additional issues; (d) any U.S. tax advice contained in this communication (including attachments) is not intended or written to be used, and cannot be used, for the purpose of promoting, marketing or recommending to another party any transaction or matter addressed herein, and (e) with respect to any U.S. tax issues outside the limited scope of this advice, and U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of avoiding tax- related penalties under the Internal revenue Code. From: Bruce j Low [mailto:bjlc @sbcglobal.net] Sent: Wednesday, January 03, 2007 4:30 PM To: eaton727 @earthlink.net Subject: Re: [Fwd: 31st Street Mixed Use Project] Thanks, Jaime and Mr. Eaton. As I indicated to Jim Campbell earlier today, the neighborhood is in total disagreement with the interpretation by the city pertaining to the parking demands and the ability of the operator to conduct business on a non restricted basis on the weekends. We believe the Coastal Commission was clear and there is no parking study to support the thesis that there is no parking problem on the weekends. The Coastal Commission has indicated that the restriction applies daily. The parking belongs to the public and the non restricted operation is in conflict with the public's ability to use the parking. This is a huge problem. Bruce Low Susan/Barry Eaton <eaton727@earthlinknet> wrote: Subject: RE: 31 st Street Mixed Use Project Date: Wed, 3 Jan 2007 14:35:50 -0800 From: "Murillo, Jaime" <JMurillo @city.newport- beach.ca.us> To: <eaton727 @earth1ink.net> CC: "Campbell, James" <JCampbell @city.newport- beach.ca.us>, "Lepo, David" <dlepo@hogleireland.com> 1) Correct 2) Theoretically yes, although not required. I had informed the applicant that he would have the opportunity to develop an exclusively 3/26/2007 Page 3 of 3 residential project once the new GP was approved; however, he expressed he was not interested and was anxious to develop the project as proposed. I believe he didn't want to wait for the new zoning ordinance or interim zoning regs, as he has already been holding the properties for some time now and any more delay in this project could affect the financial feasibility. - - - -- Original Message---- - From: Susan/Barry Eaton [mailto:eaton727 @earthlink.net] Sent: Wednesday, January 03, 2007 2:57 AM To: Murillo, Jaime Cc: Campbell, James; Lepo, David Subject: 31 st Street Mixed Use Project Jaime, I have a couple of questions about this staff report: - The staff report mentions that this site is now classified as MU -1-14 on the new General Plan, and that that means that, once new regulations are adopted to implement the GP, that this site could be developed with horizontal mixed use, or residential only, as well as vertical mixed use. Is that correct? - If so, does that mean that, theoretically, the site could be developed with a non residential use on it's most northerly portion (next to Rudy's), and residential only on the remainder, so that Rudy's would be given some protection (as we did for Woody's Wharf on the Bayside Marina project), and the remainder of the project wouldn't have to be filled up with commercial parking spaces for the barely visible commercial ground floor spaces, which end up dictating the building design and requiring multiple modification requests? Thank you for your consideration of these questions. I look forward to your response. 3/26/2007 COUHCII MEMBERS • Motion All Ayes • CITY OF NEWPORT BEACH September 27, 1995 In response to question raised Council Member Sansone regarding the proposed franchise fee, Chief Riley stated that the ambulance operator will be required to ppay a fixed percentage of tea porcent (l0 }a) of the gross receipts of the service. It was also pointed out that a public hearing will be held on October 11 regarding a proposed resolution emending the rates for ambulance service within the City pursuant to Section 5.14.090 of the Municipal Code. Hearing an one else wishing to address the Council, the public hearing was closed. Motion was made by Council Member Hart to adopt Ordinance No. 95 -21. Mayor Turner opened the public hear regarding USN PERMIT ho. 349S (Revised - Request to revise a previously approved use permit that permitted the establishment of a restaurant/brewpub with on -sale beer and wine and outdoor seating on property located in the Sppecialtyty Retail area of the Cannery Village/McFadden Square Specific Plan. The proposal involves a request to rescind the City Council's previous action that permitted the ezpanded =a of daytime in -lieu parking spaces in the Cannery Village Municipal Parking lot which were to be used in conjunction with the daytime operation of the proposed restauant/brewpub at 2920 Newport Boulevard. The proposal also Includes a request to change the daytime parking requirement for the facility from one parking space for each 40 square feet of "net public area," to one parking space for each 50 square feet of "net public area "; and reduce the allowable daytime "net public area" to 1,500 square feet before 5:00 p.m., property located at 2920 Newport Boulevard, on the southeasterly cormocc of Newport Boulevard (northbound) and 30th Street, in Cannery Village. Report from the Planning Department. The Planning Director advised that this application ws before the City Council In March 1993 and a use permit was approved, subject to revisions of the off -site parking agreement which would have allowed the applicant to use 29 parking spaces in the Cannery Village Municipal parking lot prior to 5 p.m. However, at the Coastal Commission hearing In July, the staff and Coastal Commission disagreed with the action that had been taken by the Cit and it was their determination that the use of the 29 puking spaces in the lot would conflict with the public use of the sane spaces prior to the hour of 5 p.m.; therefor&, they took action Volume 47 - Page 253 - 3/a�lo�i� MINUTES 3485(8; 0 loon All Av • CITY OF NEWPORT BEACH September 27, 1993 to modify the approval, subject to four conditions: 1) that the applicant record a deed restriction which would allow no more than 1500 square feet of service area being used prior to 5 p.m.; 2) that 41 off -site parking spaces will be maintained between 6 a.m. and 5 P.M. daily and 67 off -site parking spaces between 5 p.m. and 2 a.m., (the 41 off - site parking spaces between 6 a.m. and 5 p m. are on privately owned property under the same ownership immediately adjacent to the brewpub and the additional spaces would be in the Municipal lot and would be used after 5 p.m.); 3) that the City Council rescind its earlier action allowing the use of the off -site parking spaces in the Munici al lot prior to 5 p.m.; 4) that the City will agree to enforce the restrictions on the area of service (the 1500 square feet being used prior to 5 P.M.). James Person, representing the applicant, addressed the Council and stated they feel this is a reduction of intensity in we from the time it was approved by the City Council last March; however, they do agree to the conditions of approval as imposed by both the City and the Coastal Commission. Hearing no one else wishing to address the Council, the public hearing was closed. Motion was made to by Council Member Debay- to approve Use Permit No. 3485 (Revised) with the findings and subject to the conditi.oas of approval set forth In the attached Rxhibit -A.v The following persons addressed the Council and expressed their reasons for opposing Measure A on the November ballot - Proposed Open Space Assessment District: Stuart Villiams, 1748 Bayport Vay Selen Rieron, 3201 Fourth Avambe Tom and Mike Sullivan, 121 Marine Avenue Mary Ann Towersey, 501 Rings Place, member of the Newport Conservancy Hoard of Directors, addressed the Council io promote the "Valk on the Vild Sidp" event which is scheduled for Sunday. October 10 and begins at the Castaways site at 16th Street and Dover Avenue and concludes at the same site for a 8=32 sspt picnic and other attractions for public enjoyment. Regiatration forms are available at the libraries and at the Parks. Beaches 6 Recreation Department; Volume 47 - Page 254 1!19149 U/P 3485(R; Measure A