HomeMy WebLinkAbout12 - Woodys Wharf Use Permit Appeal�EW�oR> CITY OF
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C9�/p0.N`P City Council Staff Report Agenda Item No. 12
March 12, 2013
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Community Development Department
Kimberly Brandt, AICP, Director
949-644-3226, kbrandt(a)newportbeachca.gov
PREPARED BY: Javier Garcia, AICP, Senior Planner
APPROVED: O.
TITLE: Woody's Wharf Use Permit Appeal
2318 Newport Boulevard
Use Permit No. 2011-010 (PA2011-055)
ABSTRACT:
The applicant and owner of Woody's Wharf have appealed the Planning Commission's
approval of Conditional Use Permit No. 2011-010 to change the operational
characteristics of an existing restaurant. On November 8, 2012, the Planning
Commission approval included: 1) extending the opening hour of the restaurant from 11:00
a.m. to 10:00 a.m., daily, and the closing hour of the outdoor dining area from 11:00 p.m.
to 12:00 a.m. on Friday and Saturday nights; 2) amending the requirement for full-time
valet parking service during restaurant operating hours; and 3) waiving up to six (6)
parking spaces resulting from the elimination of full-time valet parking service.
On November 26, 2012, the applicant appealed the Planning Commission's action and
requested that the City Council allow the closing hour of the outdoor dining area to be 2:00
a.m., daily; permit dancing within the restaurant; permit removal of up to 50 percent of the
dining tables and chairs in the outdoor dining area to accommodate patrons; permit
promotional events a maximum of one (1) night per week; and permit door charges, cover
charges and any other form of admission charge.
Since the Planning Commission's action and the applicant's filing of the appeal, new
information has become available related to the application. The applicant submitted a
noise study in January 2013, which may provide evidence related to the operation of the
outdoor seating area. Also, in February 2013, City staff discussed with the applicant a
design concept to enclose the outdoor seating area with the intent of addressing noise and
Building Code concerns. The patio enclosure was not part of the original application, and
the applicant is requesting that it be allowed to encroach into the bulkhead 10 -foot setback
area. Therefore, an amendment to the application is required to include a request for a
variance for an enclosed outdoor dining area.
1
Woody's Wharf Use Permit Appeal
March 12, 2013
Page 2
RECOMMENDATION:
Staff recommends, and the applicant concurs, that the City Council direct the Planning
Commission to review and take action on the application which is to be amended to
include the variance request and noise analysis.
ENVIRONMENTAL REVIEW:
It is recommended that the City Council take no action in regards to the subject
application. Environmental review of the proposed project will be undertaken when
action is taken in accordance with the California Environmental Quality Act.
NOTICING:
Prior to the previously scheduled hearing of January 22, 2013, notice was published in
the Daily Pilot, mailed to all property owners within 300 feet of the property, and posted
at the site a minimum of 10 days in advance of the hearing consistent with the Municipal
Code. The City Council continued the matter from that date to the hearing of March 12,
2013, consequently, a notice of this hearing was not mailed out, posted or published in
the Daily Pilot. However, the item appeared upon the agenda for this meeting, which
was posted at City Hall and on the City website. The agenda item has been noticed
according to the Brown Act (72 hours in advance of the meeting at which the City
Council considers the item).
Submitted by:
Kimberly Brand, AICP
Director
2
CITY OF NEWPORT BEACH `�
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APPLICATION TO APPEAL DECISION OF THE PLANNING COM..KI.SSION
Application No.
3' 35
Name of Appellant
or person filing: _' �Y �Al\ Phone: C 611
Address: �AV'A 1 V�10,i 1 t' hwr Na[ r�"i�Z (� ���� C a l0 Uy
Date of Planning Commission decision: 20
Regarding application of:
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(Description of application filed with Planning Commission) f jS _GIN, , �- � �.��1 c., o
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Reasons for Appeal : G, n6,
Signaturi6of Appellant
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CITY CLER ,
FOR OFFICE USE ONLY
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Date i I ?-U 2
Date Appeal filed and Administrative Fee received: ftlU �M$ �%, 20
cc: Appellant
Planning (furnish one set of mailing labels for mailing)
File
APPEALS: Municipal Code Sec. 20.64.030
Appeal Fee: $4,187.00 pursuant to Resolution No. 2011-108 adopted on 11-22-11.
(Deposit funds with Cashier in Account #2700-5000)
WOODY'S GROUP, INC.
2318 NEWPORT BLVD
PAY
TO THE
ORDER OF
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4581
16-24/1220 4491
3342114463
DATE � / L
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$
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Wells Fargo Bank N.A.
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California
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PoRT CITY OF NEWPORT BEACHFINANCE DEPARTMENT
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3300 \ I;\Y'PORT BLVD.
P.O. BOX 1708, Nli\\"PO RT liEACH, CA 92(58-891
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RECEIPT NUMBER: 02000158451
RECEIVED BY: ROBERT PAYOR: WOODY'S GROUP
TODAY'S DATE: 11/26/12 REGISTER DATE: 11/26/12 TIME: 15:38
27005000 ZONING & SUBDIVISION FEES PLANNING APPEAL $4,187.00
-------------------
TOTAL DUE: $4,187.00
$4,187.00 $.00
CHECK $4,187.00
REF NUM: 4581
Real Estate Development and
Construction Management Services
November 26, 2012
Via Hand Delivery
City Clerk
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92658
Re: WOODY'S WHARF
2318 Newport Boulevard, Newport Beach, California
Appeal to City Council of Planning Commission action
CUP No. PA2011-055
To Whom It May Concern:
MPS
On behalf of Woody's Wharf, we hereby submit the following appeal application for the above
referenced case application, consisting of:
1. Appeal Application, including exhibits and photographs
2. Filing fee in the amount of $4,187 (check #4581)
Please let me know if it would be possible to have this matter heard by the City Council in
January 2013.
Thank you.
Sincerely,
Martin Potts & Associates, Inc.
a Cal'iforDA corporation
barJ f,,, Potts
President
on behalf of Woody's Wharf
Enclosures (as stated)
cc: Mr. Jay Garcia — City of Newport Beach (w/enclosure)
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
tel 949.719.1900
fax 949.719.1909
N C
Appeal Application
Community Development Department
Planning Division
3300 Newport Boulevard, Newport Beach, CA 92663
(949)644-3204 Telephone 1 (949)644-3229 Facsimile
www.newportbeachca.gov
Application to appeal the decision of the:
Appellant Information:
Name(s): Woody's Wharf, c/o MPA, Inc.
Address: 2318 Newport Boulevard
City/State/Zip: Newport Beach, CA
Phone: (949) 719-1900
Appealing Application Regarding:
❑ Zoning Administrator
❑ Planning Director
❑ Hearing Officer
For Office Use Only
Date Appeal Filed:
Fee Received:
Received by:
Fax: (949) 719.1909 Email: Potts@mpassoc.com
Name of Applicant: Marty Potts on behalf of Woody's Wharf Date of Decision: 11/8/12
Project No. (PA):
2011.055
Activity No.:
Site Address: 2318 Newport Boulevard, Newport Beach, CA
Description: Use Permit to change the operational characteristics of an existing restaurant
Reason(s) for Appeal (attach a separate sheet if necessary):
See attached
Along with application, please submit the following:
• Twelve (12) 11 x1 7 sets of the project plans
• One set of mailing labels (on Avery 5960 labels) for all property owners within a 300 -foot radius,
excluding intervening right-of-ways and waterways, of the subject site.
Signature of Appellant: Date: 11/21/12
I:\Users\C DD\Shared\Ad min\Planning_Division\Applications\Ap peaMppIication.d ocx
Updated 2/8/12
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. docx
Pagel 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.
Applicant's Position:
➢ While it is the Applicant's intent to further study the noise generated from
Woody's Wharf as well as the surrounding area using a qualified acoustical
engineer, it is believed that any noise generated from Woody's Wharf has no
adverse impact on the adjacent residential properties.
➢ There are three restaurants closer to the 28th Street Marina building than Woody's
Wharf, and all are a contributor to noise affecting the residences. The residences
have complained regarding each of these establishments.
➢ Woody's enforces the following operational restrictions, some which are self-
imposed.
o Any entertainment is strictly confined to the interior of the restaurant.
o All perimeter doors remain closed other than patrons entering or exiting
the restaurant.
o 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)
o 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)
Woody's Wharf
file:S:\132 - Woody's Wharf Entitlement\300 - City Corr\325 CUP\Appeal Application. docx
Page 2 of 6
o 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)
➢ On Friday, November 2, 2012, Matt Cosylion, Code Enforcement Supervisor with
the City of Newport Beach visited the restaurant around 12:30am 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.
➢ Woody's is conducting a noise assessment, conducted by a professional
acoustical engineer, to determine the actual impacts which may be attributable to
Woody's Wharf. This study will be complete by January 11, 2013, and will be
prepared to address all noise concerns raised by the community at the Planning
Commission hearing.
➢ If the noise assessment concludes significant impacts to the residences
attributable to Woody's Wharf, Woody's is willing, and always has been willing to
construct a retractable patio cover to mitigate any noise impacts. This is at the
past suggestion of 28th Street Marina HOA. However, the challenge with
constructing this retractable roof is an existing property line which bisects the
existing patio and existing building structure. Codes prohibit building over this
property line. We request the City Council consider and approve an exception to
the code to allow construction of this patio cover, should a cover be necessary at
all for noise containment. This would not create any additional code violations.
Dancing
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
Woody's Wharf
file:S:\132 - Woody's Wharf Entitlement\300 - City Corr\325 CUP\Appeal Application. docx
Page 3 of 6
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."
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 11pm 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
Woody's Wharf
file:S:\132 - Woody's Wharf Entitlement\300 - City Corr\325 CUP\Appeal Application.docx
Page 4 of 6
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.
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 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 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 33
Staff Condition: Dancing shall be allowed on the premises only in conjunction with the
issuance of a Caf6 Dance permit by the City Manager or designee, if applicable.
Woody's Wharf
file:S.\132 - Woody's Wharf Entitlement\300 - City Corr\325 CUP\Appeal Application. docx
Page 5 of 6
i _ _
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 (might
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:S:\132 - Woody's Wharf Entitlement\300 - City Corr\325 CUP\Appeal Application.docx
Page 6 of 6
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View taken from point on Woody's Patio
where Commonwealth building obscures
the 28th Street Marina building
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View from furthest
corner of the patio
showing maximum
extent of 28th Street
Marina Building visible
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Commonwealth Building
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AFTER 10pm ASSESSMENT, W/ PARKING @ 1/40sf
BAR / RECEPTION AREA - 318 SF
REQ. PARKING @ 1/40
7.95 STALLS
PLUMBING OCC. LOAD @ 1/30
10.6 OCC.
EGRESS OCC. LOAD @ 1/5
63.6 OCC.
BAR DINING AREA - 63 SF
REQ. PARKING @ 1/40
1.58 STALLS
PLUMBING OCC. LOAD @ 1/30
2.1 OCC.
EGRESS OCC. LOAD @ 1/15
4.2 OCC.
INDOOR DINING AREA - 167 SF
REQ. PARKING @ 1/40
4.18 STALLS
PLUMBING OCC. LOAD @ 1/30
5.57 OCC.
EGRESS OCC. LOAD @ 1/15
11.13 OCC.
INDOOR DANCING AREA - 400 SF
REQ. PARKING @ 1/4 OF EGRESS OCC.
20.00 STALLS
PLUMBING OCC. LOAD @ 1/15 SF
26.67 OCC.
EGRESS OCC. LOAD @ 1/5 SF
80.00 OCC.
PATIO DINING AREA - 242 SF (181.5 @
75%)
REQ. PARKING @ 1/40, 75% OF AREA
4.54 STALLS
PLUMBING OCC. LOAD @ 1/30
8.07 OCC.
EGRESS OCC. LOAD @ 1/15
16.13 OCC.
PATIO STANDING AREA - 439.5 SF
REQ. PARKING @ 1/4 OF EGRESS OCC.
21.98 STALLS
PLUMBING OCC. LOAD @ 1/15 SF
29.3 OCC.
EGRESS OCC. LOAD @ 1/5 SF
87.9 OCC.
KITCHEN AREA, LESS COOKTOP + OFFICE - 1008 SF
REQ. PARKING
N.A.
PLUMBING OCC. LOAD @ 1/200
5.04 OCC.
EGRESS OCC. LOAD @ 1/200
5.04 OCC.
AFTER 10 PM SUMMARY
PARKING REQ. 61 / PROVIDED 47
PLUMBING OCC. LOAD 88/ MAX ALLOWED 100
PLUMBING FIXT. MEN 1+1 REQ., WOMEN
2 REQ. & 3/2 PROVIDED
EGRESS OCC. LOAD 268
OFFICE
OFFICE / KITCHEN - 1008 SF
(E) KITCHEN
ET
STAGE / DJ
EPTION AREA - 318 S
BAR
AFTER 10:00 PM SEATING PLAN
SCALE: 1/4"=1'-0"
AFTER
10 PM
BAR
5'-D'
PATIO DINING AREA'- 709
AFTW 10 PM
PATIOS DING AREA - 439.5 S
PAT nIIUNINr AREA — ?A7 U
BEFORE 10
INDOOR DINNIN RFA -
aD00R DANCING AREA - 400 SF
NDOOR DINNING AREA - 167 SF
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° robiuson hill architecture, me.
° ACalifornia Corporation
3195-B Airport Laop Dr.
° Costa Mesa, CA 92626
° tel. 714-625-8688
fax 714-825-8889
° web www.rhain..net
° Michael Dud Rabinsaa. C-20731
° Jahn Steven Hill: C-23553
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Issue Date 11.26.12
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° CODE ASSESSMENT
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