HomeMy WebLinkAbout12 - Woody's Wharf Use Permit Appeal - Appeal LetterX -71 6M."r. •
Agenda Item No. 12
March 12, 2013
CITY OF NEWPORT BEACH
COMMUNITY DEVELOPMENT DEPARTMENT
3300 NEWPORT BOULEVARD, BLDG. C
NEWPORT BEACH, CA 92658 -8915
(949)644 -3297
To:
Council Members
From:
Brenda Wisneski, Deputy Community Development Director
Date:
March 11, 2013
Re:
Woody's Wharf Use Permit Appeal — Agenda Item #12
Attached, for your information, is the applicant's appeal letter. As stated in the staff report, staff
recommends the City Council direct the Planning Commission to review and take action on the
application.
Real Estate Development and
Construction Management Services
February 26, 2013
Via Hand Delivery
City Clerk
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92658
Mrs
Re: WOODY'S WHARF I B c
2318 Newport Boulevard, Newport Beach, California
Amended Appeal to City Council of Planning Commission action
CUP No. PA2011-055
Dear Mr. Garcia:
On behalf of Woody's Wharf and following our meeting of Friday, February 22, 2013 with City
Staff, we hereby submit the following amended appeal application for the above referenced
case application.
Please let me know if you have any questions.
Thank you.
Sincerely,
Martin Potts & Associates, Inc.
a Californ)A corporation
Potts
on behalf of Woody's Wharf
Enclosures (as stated)
cc:
Mr. Mark Serventi — Woody's Wharf (w /enclosure)
Mr. Greg Pappas — Woody's Wharf (w /enclosure)
4041 MacArthur Blvd, Suite 490
Newport Beach, CA 92660
fell 949.719.1900
fax 949.719.1909
Appeal Application, continued
November 23, 2012
Woodys Wharf — PA2O11 -055
2318 Newport Boulevard, Newport Beach, CA
Planning Commission of November 8. 2012:
On November 8, 2012, the Newport Beach Planning Commission conducted a public
hearing, receiving a proposal from the applicant and hearing arguments by various
homeowners residing in the 28th Street Marina building. Upon closing the public
hearing, in order to provide the applicant the opportunity and time to conduct further
studies as recommended by the Commission to address the community concerns, a
motion to continue the application to a later Planning Commission hearing date was
made, voted and denied 4 -3. Following further discussion among the Commission, the
motion to continue was then reconsidered at the request of Commissioner Myers, who
previously denied the motion to continue. The Commission voted a second time on the
motion with Commissioner Myers changing his vote from a denial to an approval. At the
same time Commissioner Brown changed his previous vote from an approval to a denial,
and the motion again carried a 4.3 denial.
The Commission then made a motion to approve City staff's recommendations and
conditions, with the following modifications:
a. Dancing would be prohibited, although recommended by City staff to be approved,
and;
b. The closing hour of the outdoor patio would be 11:00 pm daily with the exception of
Friday and Saturday nights when the patio could remain open until midnight.
This motion was approved by a 4 -3 vote with Commissioners Kramer, Myers and Ameri
not in support of the motion.
It was the desire of the Applicant at the Planning Commission that the application be
continued allowing the Applicant time to conduct a professional noise assessment to
address community and Planning Commission concerns, and to further explore
alternatives with City staff to enclose the patio, if necessary. The decision of the
Newport Beach Planning Commission on November 8, 2012 has left us no option but to
present this appeal to the City Council for its consideration. This action, and the
imposed conditions, places new restrictions on Woody's business which were not part
of any previous entitlements. While most of the proposed conditions are acceptable to
Woody's, the conditions regarding operating hours and dancing create a hardship to the
restaurant operations and its Owners. Woody's is not seeking anything more than how
it is operating its business today, and how the restaurant has been operated for years
prior to the current Ownership. We are not seeking any expansion of the restaurant.
Woody's Wharf
file:S: \132 -Woody's Wharf Entitlement \300 -City Corr \325 CUP \Appeal Application - Accepted.docx
Page 1 of 6
Woody's is willing to mitigate the community and City concerns regarding its business
operations in order to maintain competitiveness in the ever demanding restaurant
environment in Newport Beach.
Background:
Woody's Wharf has been an operating restaurant establishment in the City of Newport
Beach for nearly 50 years. Recently a number of code citations have been issued to the
restaurant claiming late night hours and noise. It is the opinion of Woody's Wharf that it
has been operating in compliance with its current use permit.
The key issues Woody's Wharf is disputing of the Planning Commission's action are as
follows:
Noise
Issue:
Noise experienced by neighboring residences is claimed to be generated from activities
of Woody's Wharf.
Aoolicant's Position:
➢ Woody's retained Mestre Greve to conduct a Noise Measurement Survey which
was submitted to the City on January 9, 2013. This survey concludes that while
the outdoor patio of Woody's Wharf generates noise, other establishments in
closer proximity to the 28th Street Marina Building generate noise which are
greater impacts to the Marina Building.
➢ Woody's enforces the following operational restrictions, some which are self -
imposed.
• Any entertainment is strictly confined to the interior of the restaurant.
• All perimeter doors remain closed other than patrons entering or exiting
the restaurant.
• A 10:00 pm curfew of the boat docks adjacent to the restaurant, which
does not allowing public to loiter on the boats. Boats may enter and leave
the docks after 10:00 pm. (self- imposed)
• Restaurant security ensures that late night customers leaving the
restaurant do not loiter on the property and are escorted to responsible
transport vehicles. (self- imposed)
• A new interior sound system has been installed with speakers directed
away from the patio. The system contains a "compression limiter" which
provides management with overriding volume controls. (self- imposed)
Woody's Wharf
file:SA132 -Woody's Wharf Entitlement \300 -City Corr \325 CUP \Appeal Application - Accepted.docx
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➢ On Friday, November 2, 2012, Matt Cosylion, Code Enforcement Supervisor with
the City of Newport Beach visited the restaurant around 12:3Oam unannounced
and met with Mark Serventi. After evaluating Woody's Wharf and the
Commonwealth restaurant, Mr. Cosylion concluded the noise impacting the
Marina building was not generated from Woody's Wharf but mainly from other
establishments in the surrounding vicinity.
➢ Woody's Wharf is approximately 200 feet from its closest corner and 570 feet
from its furthest corner to the 28th Street Marina Building. Another restaurant,
Commonwealth, lies between Woody's Wharf and these residences, approximately
90 feet from the residences. Noise impacting the residences is not generated by
Woody's Wharf, but rather emanates from Commonwealth. Refer to the attached
Exhibit 1 which depicts the location of Woody's Wharf, 28th Street Marina and
other noise sources. Also, photographs of the Woody's Wharf patio taken toward
the 28th Street Marina building are included. It is evident from these
photographs, the residences of 28th Street Marina are hardly in the line of sight
from the Woody's patio.
➢ While it remains the position of Woody's Wharf that the noise concerns of the 28th
Street Marina Building is not generated by Woody's Wharf, Woody's is nonetheless
willing to construct a retractable roof above the outdoor patio to mitigate any
noise emanating from its patio.
Dancine
Issue:
City Staff believes dancing is acceptable as part of the Woody's Wharf existing Use
Permit as evidenced by their recommended approval in their staff report to the Planning
Commission . The Planning Commission denied dancing stating "dancing is prohibited"
under the Permit to Conduct Live Entertainment issued on March 14, 2006.
Applicant's Position:
Woody's Wharf has always had patron dancing as part of its operations which generally
occurs between 10:00 pm and 2:00 am Thursday, Friday and Saturday nights. No
permit is needed for these activities.
➢ The Permit to Conduct Live Entertainment states in part: The approval of this permit
is contingent on the compliance with the regulations for operation as defined by
Newport Beach Municipal Code Section 5.28.041 and the following specific conditions:
3) Dancing is prohibited."
Woody's Wharf
file:SA132 -Woody's Wharf Entitlement \300 -City Corr \325 CUP \Appeal Application - Accepted.docx
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The Newport Beach Municipal Code Section 5.28.010 defines "Entertainment" in
part as: 'the presence of any performer, dancer, employee, agent, model or other
person, collectively and individually referred to as "entertainer "'.
The dancing restriction in this instance deals directly with the Live Entertainment
Permit and does not apply to the form of dancing at Woody's Wharf. Woody's is
in compliance with the Live Entertainment Permit because it does not allow
dancers to perform as part of the live entertainment.
➢ Pursuant to Section 5.32 of the NBMC, Woody's does not meet the definition of a
Cafe Dance as it levies a cover charge pursuant to Section 5.32.010 of the Code.
It is for the reasons stated above Woody's Wharf is permitted to have dancing as part of
its Use Permit.
Operating Hours of Patio
Issue:
City staff believes the patio shall close at l 1pm nightly as stipulated in the Outdoor
Dining Permit issued October 4, 1995. Then Planning Commission approved the patio to
operate as late as midnight on Friday and Saturday nights.
Applicant's Position:
Woody's has been operating the outdoor patio as late as 2:00 am on Thursday, Friday
and Saturday nights, and 11:00 pm on other days of the week. On September 18, 2008,
a meeting was held in follow -up to the City Planning Department's action to examine the
project file and determine the operating hours of the outdoor patio. In attendance at this
meeting was the Owner's of Woody's Wharf, the City Planning Department, Police
Department and Fire Department. Following this meeting it was determined and
documented by the Newport Beach Police Department that "their Use Permit allows them
to operate the outdoor patio until close. It is the outdoor 'deck' that may not be utilized after
11:00 pm."
Given all live entertainment is confined to the interior of the restaurant and the City has
previously conditioned the operation to minimize outdoor noise, the outdoor patio should
be able to operate until 2:00 am without impact to the surrounding residential
properties. Woody's will continue to ensure the outdoor deck is not utilized after 11:00
pm. We request the City Council uphold the right for Woody's Wharf to operate its
outdoor patio until 2:00am nightly. Woody's is heavily reliant upon these business hours
to maintain its operations.
Woody's Wharf
file:SA132 -Woody's Wharf Entitlement \300 -City Corr \325 CUP \Appeal Application - Accepted.docx
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Other Conditions of Approval
Following are proposed staff conditions of approval which Woody's Wharf needs
modified.
Condition 9
Staff Condition: The outdoor dining area shall be limited to a maximum of 66 seats,
including disabled seats /table space, consistent with the floor plans as approved by Plan
Check set of plans PC1141 -2011. The seating and dining in the outdoor dining patio
shall be limited to dining table height (approximately 30 inches) and the use of the
elevated counters and barstools is prohibited. Removal of dining tables and chairs shall
be prohibited.
Proposed Modified Condition: The outdoor dining area shall be limited to a maximum of 66
seats, including disabled seats /table space, consistent with the floor plans as approved by Plan
Check set of plans PCI 141 -2011. The seating and dining in the outdoor dining patio shall be
limited to dining table height (approximately 30 inches) and the use of the elevated counters
and barstools is prohibited. Removal of no more than 50 % of dining tables and chairs shall be
prohibited.
Justification: While 90% of the time Woody's Wharf is a restaurant, the need to service
the customer demand is critical. During the late hours, in order to accommodate our
patrons, it is necessary to remove some of the patio tables and chairs and create more
standing room. We are attaching a floor plan showing the after 10:00PM seating
arrangement showing the use of the restaurant during these times.
Condition 11
Staff Condition: That the "net public area" of the interior portion of the eating and
drinking establishment shall not exceed 1,173 sq. ft. and the outdoor dining area shall
not exceed 709 sq. ft. for a total of 1,882 square feet of net public area.
Proposed Modified Condition: That the "net public area" of the interior portion of the
eating and drinking establishment shall not exceed 1,173 sq. ft. and the outdoor dining
area shall not exceed 709 sq. ft. for a total of 1,882 square feet of net public area. The
occupant load of the building is set at 164 maximum occupants.
Condition 33
Staff Condition: Dancing shall be allowed on the premises only in conjunction with the
issuance of a Cafe Dance permit by the City Manager or designee, if applicable.
Woody's Wharf
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Proposed Modified Condition:
Justification: As stated in the Dancing section above, a Cafe Dance permit is not
applicable nor required. We propose deletion of this condition.
Condition 48
Staff Condition: Any event or activity staged by an outside promoter or entity, where the
restaurant owner or his employees or representatives share in any profits, or pay any
percentage or commission to a promoter or any other person based on money collected
as a door charge, cover charge or any other form of admission charge, including
minimum drink orders or sale of drinks is prohibited.
Proposed Modified Condition: Any event or activity staged by an outside promoter or entity,
where the restaurant owner or his employees or representatives share in any profits, or pay any
percentage or commission to a promoter or any other person based on money collected as a
door charge, cover charge or any other form of admission charge, including minimum drink
orders or sale of drinks is prohibited. Applicant shall be allowed a maximum of one (1) night
per week to conduct such an event, but in no instance shall a minimum drink order be allowed.
Justification: Woody's Wharf holds promotional events, for example fundraisers,
corporate trainings, wedding rehearsal dinners, etc. where Woody's pays an outside
business for the referral. Woody's is willing to limit this to a maximum of one night /day
per week. To restrict this component of Woody's business plan will be detrimental to its
business.
Condition 51
Staff Condition: "VIP" passes or other passes to enter the establishment, as well as door
charges, cover charges, or any other form of admission charge, including minimum drink
order or sale of drinks is prohibited.
Proposed Modified Condition: "VIP" passes or other passes to enter the establishment,
including minimum drink order or sale of drinks is prohibited.
Justification: Woody's Wharf currently charges an admission fee (or cover charge) at
certain times as demands warrant. This helps with the quality of customers who visit
Woody's.
Woody's Wharf
file:SA132 -Woody's Wharf Entitlement \300 -City Corr \325 CUP \Appeal Application - Accepted.docx
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