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HomeMy WebLinkAbout04 - Woody's Wharf Use Permit Appeal PA2011-055 - Redlined ResolutionAgenda Item No. 4 November 12, 2013 RESOLUTION NO. 2013- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH UPHOLDING IN PART AND REVERSING IN PART THE PLANNING COMMISSION'S DECISION REGARDING CONDITIONAL USE PERMIT NO. UP2011 -010 BY APPROVING A CHANGE TO THE OPENING HOUR AND THE VALET PARKING PLAN AND PARKING WAIVER BUT DENYING EXTENSION OF THE CLOSING HOUR OF THE OUTDOOR PATIO AREA, PATRON DANCING, AND A CHANGE TO THE INTERIOR AND OUTDOOR PATIO FLOOR PLAN; APPROVING VARIANCE VA2013 -006 TO ALLOW AN ENCROACHMENT INTO THE BULKHEAD SETBACK; AND SUPERSEDING USE PERMIT NO. 3065 AND OUTDOOR DINING PERMIT NO. 1 FOR AN EXISTING EATING AND DRINKING ESTABLISHMENT LOCATED AT 2318 NEWPORT BOULEVARD (PA2011 -055). THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, BASED ON CONSIDERATION OF THE WHOLE RECORD BEFORE IT, INCLUDING BUT NOT LIMITED TO, THE STAFF REPORT TO THE CITY COUNCIL DATED OCTOBER 8, 2013, ALL EXHIBITS THERETO, ALL DOCUMENTS — PRESENTED TO THE PLANNING COMMISSION AND CITY COUNCIL, THE PLANNING COMMISSION MINUTES, ALL TESTIMONY, AND ALL ORAL AND WRITTEN EVIDENCE PRESENTED TO THE CITY COUNCIL, HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. Woody's Wharf Restaurant ( "Woody's ") has been in operation since 1965 and is located at 2318 Newport Boulevard, and legally described as Lots 6, 7, and 8, Section A Newport Beach, Block 223. Woody's is a full service restaurant that also offers live entertainment. Woody's operational hours are 11:00 a.m. to 2:00 a.m., with the outdoor patio to close by 11:00 p.m. Woody's operates under Use Permit No. 3065, which was originally issued in 1983 and subsequently amended in 1988, Outdoor Dining Permit No.1 issued in 1995, and a Live Entertainment Permit issued by the City's Revenue Division in 2006. 2. An application was filed by Mr. Martin Potts on behalf of Woody's, seeking to amend Use Permit No. 3065 to change the permitted scope of Woody's operations. 3. Specifically, the application requested a conditional use permit and variance that would allow the following changes to Woody's permitted operations: 1) extension of the opening hour from 11:00 a.m. to 10:00 a.m., daily; 2) extension of the closing hour of the existing outdoor patio area from 11:00 p.m. to 2:00 a.m., daily; 3) the removal of tables and chairs within the restaurant and the outdoor patio 1 area to accommodate patron dancing in the interior of the restaurant, nightly; 4) a reduction in the current requirement from full -time valet parking service during restaurant operating hours to valet parking only on an as- needed basis (to accommodate special events and holiday peak use); and 5) a waiver of up to six (6) parking spaces that would result from the addition of patron dancing, in connection with the elimination of the full -time valet services requirement. The application also sought to eliminate from existing permits certain conditions of approval that may be duplicative and /or otherwise outdated. 4. Woody's General Plan Land Use Element category is Mixed Use — Water Related District (MU -W2). It is located within the Mixed Use — Water Related Zoning District (MU -W2). 5. Woody's is located within the coastal zone. The Coastal Land Use Plan category is Mixed Use — Water Related District (MU -W). 6. Outdoor Dining Permit No.1 issued by the City on October 4, 1995 and Live Entertainment Permit No.1 issued by the City on March 14, 2006 allow Woody's use of the outdoor patio only until 11:00 p.m. 7. Woody's current parking requirement is one (1) parking space for every forty (40) square feet of net public area. The net public area is one thousand five hundred eighty -nine (1,589) square feet; therefore Woody's parking requirement is forty (40) parking spaces. There are twenty -six (26) parking spaces on -site (with six (6) tandem spaces available only with the valet parking service) and ten (10) annual in -lieu spaces, and a credit of four (4) spaces for the boat docks, for a total forty (40) parking spaces allocated to Woody's. 8. Patron dancing is prohibited at Woody's pursuant to Condition #3 of Woody's Live Entertainment Permit No.1 issued by the City on March 14, 2006. 9. On November 8, 2012, the Planning Commission conducted a public hearing in accordance with the Newport Beach Municipal Code ( "NBMC "), and approved Condition Use Permit No. UP2011 -010 and Variance No. VA2013 -006, which authorized: 1) extending the opening hour of the restaurant and outdoor patio area from 11:00 a.m. to 10:00 a.m., daily; 2) extending the closing hour of the outdoor patio area from 11:00 p.m. to 12:00 a.m. on Friday and Saturday nights; 3) reducing the required use of valet parking to an as- needed basis; and 4) waiving a portion of the required parking. 10. As part of the November 8, 2012 public hearing, and in accordance with the NBMC, the Planning Commission denied Woody's request to: 1) modify the limitations of Condition #3 of Woody's Live Entertainment Permit No.1, in which there is no authorization for patron dancing in connection with restaurant use, to introduce patron dancing within the interior of the restaurant; 2) remove tables and chairs within the restaurant and outdoor patio area; and 3) extend the closing hour of the outdoor patio area from 11:00 p.m. to 2:00 a.m., daily. 2 11. On November 26, 2012, the project applicant filed an application and letter of justification appealing the Planning Commission Denials. The City Council considered the appeal at a public hearing on March 12, 2013, and requested the Planning Commission reconsider the item on the basis that the applicant intended to modify the application following the Planning Commission's decision. 12. On July 11, 2013, Woody's submitted a new additional application requesting a variance to construct a patio cover on the existing outdoor patio. As designed, the patio cover encroaches into the bulkhead setback. 13. On September 5, 2013, the Planning Commission conducted a public hearing in accordance with the NBMC and approved: 1) extending the opening hour of the restaurant and outdoor patio area from 11:00 a.m. to 10:00 a.m., daily; 2) extending the closing hour of the outdoor patio area to 2:00 a.m. Friday and Saturday nights; 3) the introduction of patron dancing within the interior of the restaurant on Friday and Saturday nights; 4) removing tables and chairs within the outdoor patio area on Friday and Saturday nights; 5) the use of valet parking on an as- needed basis; and 6) waiver of a portion of the required parking (hereinafter, the "Planning Commission Approvals "). 14. On September 9, 2013, Councilmember Michael Henn appealed the Planning Commission's September 5, 2013 decision, calling up the application pursuant to NBMC Section 20.64.030 for de novo review and consideration by the entire City Council. Mr. Henn submitted his appeal request to the City Clerk via Electronic Mail, which the City Clerk accepted under NBMC Section 20.64.030(B)(1)(b). As required by NBMC Section 20.64.030(B), Mr. Henn submitted his appeal request in writing and stated the following facts as the basis of the appeal, "[the] operational characteristics requested in the application and the Planning Commission's decision are inconsistent with the existing and expected residential character of the area and the relevant policies of the voter approved 2006 General Plan." Mr. Henn, as a Councilmember, is exempt from paying the filing fee provided by NBMC Section 20.64.030(B)(2) under the City's long- standing policy and practice of not requiring Councilmembers to pay a filing fee because their appeals are taken for the benefit of the City's residents. Since 2008, there have been eleven (11) appeals of Planning Commission decisions initiated by City Council Members and the City Clerk has not required the payment of an appeal fee under the City's policy and practice. 15. A public hearing before the City Council was held pursuant to NBMC 20.64.030(C) on October 8, 2013, in the City Hall Council Chambers, 100 Civic Center Drive, Newport Beach, California. Notice of time, place and purpose of the meeting was given in accordance with NBMC Chapter 20.62. 16. At the commencement of the hearing, counsel for Woody's raised the issue of bias on Councilmember Henn's part and demanded that he recuse himself from participation. Upon Henn's representation that he had learned from the record and from personal observations about the application, he believed he was 3 approaching it without bias, since the hearing would likely include "new facts, new views, new insights" that could influence him to vote differently from what he at first anticipated. Based on this representation and on the City Attorney's affirmation that the proceeding is de novo in nature, the City Council considered and reviewed the matter. (Breakzone Billiards, et al. v. City of Torrance (2000) 81 Cal.App.4th 1205) 17. During the public hearing the City Council heard testimony from a number of residents and interested parties, including Woody's owners and neighbors. Gary McKitterick, Esq. provided testimony at the public hearing on behalf of NP Beach Marina, LLC, which is currently constructing 27 residential units at a neighboring property located at 2300 Newport Blvd., Newport Beach, CA. Mr. McKitterick urged the City Council to deny Woody's application because the application is "inconsistent with the residential character of the neighborhood and policies of the General Plan," especially with regard to policies of the 2006 City General Plan, which advanced greater use of mixed commercial and residential use with preeminent attention to integration of uses in a manner that protects residential uses. 18. Captain Dale Johnson with the City of Newport Beach Police Department testified during the public hearing and summarized a July 29, 2013 memorandum in the record from him and Detective'' Op, itpRaRt Randy Parker: (1) A nightclub use at Woody's would be inappropriate because of its location. Woody's is located in District 15, which is heavily utilized by ABC licensed establishments. At the time of the public hearing there were 72 licensed establishments in District 15, which translates to 1 ABC licensed establishment for every 44 residents. District 15 already presents policing challenges because of the heavy concentration of alcohol establishments; an expansion of Woody's to include a nightclub would exacerbate the challenges. (2) Between January 1, 2012 and July 22, 2013, the Newport Beach Police Department received 157 calls for service in the Woody's area. Not all of the 157 calls for service originated at Woody's but all ended there. At the time of the public hearing, the Police Department had received 47 specific calls for service that originated from Woody's establishment in the year 2013 alone. The types of calls for service and their frequency are consistent with calls that the Police Department receives for other similar establishments in the area. An expansion of the use could impact these calls for service. (3) If the City Council approved the applications, the Woody's establishment would become more of a nightclub than a restaurant and bar, a significant change in the nature of the use. 0 (4) Woody's operators have a history of non - compliance that is concerning to the Police Department. Over the years, the Police Department has met numerous times with Woody's operators to discuss the hours of operation for the outdoor patio area. During those meetings, the Police Department repeatedly informed Woody's operators that the outdoor patio area must close at 11:00 p.m. Official police reports also document the fact that the Police Department informed Woody's operators of the permitted hours of operation on the outdoor patio area. Notwithstanding these repeated admonitions, Woody's continued to provide service on the outdoor patio area beyond 11:00 p.m. Therefore, the Police Department has lost confidence in Woody's operators and does not trust that Woody's operators would comply with any future noise or occupancy requirements if they were afforded limited permission to expand. Expanding the nightclub element and extending the nighttime operations would only make things worse. 19. A significant number of residents testified during the public hearing. Many urged the City Council to deny Woody's application based upon a number of factors, including, but not limited to the following: (1) Removing tables and chairs within the main dining room and outdoor patio area to allow dancing during existing and potentially extended hours and /or allowing patrons to stand would shift the business focus of Woody's from food services to alcoholic beverages sales with bar /nightclub characteristics; (2) Woody's does not serve food after 10:00 p.m., only alcohol. The residents further stated, Woody's is operating primarily as a bar and nightclub and not as a restaurant, and any further expansion of nightclub operations would exacerbate conflicts with neighboring land uses; (3) Woody's management goes home leaving residents to deal with patrons dumped on the street during early morning hours and "drunks, vomiting, public urination, crime and profanity "; (4) Inebriated patrons stagger out of Woody's, causing noise, fights and 157 police response calls since 2012, 47 calls in 2013 alone; (5) III effects on the neighborhood relating to traffic, noise, property damage, and public urination, are trace -able to patrons vacating Woody's at late hours; (6) Woody's marketing urges violations of its operating hours restrictions, promotes "booze bus" outings to Woody's, and is directed at minors attending Corona del Mar High School; (7) Woody's has a poor compliance record with the restrictions attached to its current operating permit, keeping its outdoor patio area open until 2:00 E a.m. even though it currently is required to close earlier and allowing patron dancing, which is prohibited. (8) Expansion of the nightclub environment as proposed in the application would negatively impact on law enforcement's ability to police the neighborhood, especially given Woody's poor track record for cooperating with the Police Department. (9) Although ambient noise is consistent with the urban character of the neighborhood, noise from late -night uses in the area include screaming and fighting, which alarms residents and suggests lack of safety in the neighborhood. 20. At the conclusion of the public hearing, and after hearing and reviewing all oral and written evidence presented at the public hearing, the City Council asked staff to return with a resolution containing the findings set forth herein, and taking action to: (1) Affirm the Planning Commission's September 5, 2013 decision regarding Use Permit No. UP2011 -010 and Variance No. VA2013 -006 to allow, subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference: (a) Extending the opening hour of the restaurant and outdoor patio area from 11:00 a.m. to 10:00 a.m., daily; (b) Reducing the required use of valet parking to Friday and Saturday nights and holidays from 6:00 p.m. to closing; (c) Waiving six (6) parking spaces of the required forty (40) parking spaces when valet service is not in use; and (d) Allowing the patio cover to encroach into the bulkhead setback; (hereinafter, the "Approved Application Elements ") and (2) Reverse the Planning Commission's September 5, 2013 decision regarding Use Permit No. UP2011 -010 to deny: (a) extending the closing hour of the outdoor patio area from 11:00 p.m. to 2:00 a.m. on Friday and Saturday nights; (b) patron dancing; (c) removing tables and chairs within the restaurant and outdoor patio area (hereinafter, the "Denied Application Elements "). SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 0 I . The Approved Application Elements of this project have been determined to be categorically exempt under the requirements of the California Environmental Quality Act under Class 1- Existing Facilities. This exemption applies to existing facilities where it can be demonstrated the project involves negligible or no expansion of the existing use. The change in hours of operation does not involve an expansion or intensification of the existing use. Additionally, the change in the provision of valet parking services as limited by the Approved Application Elements is consistent with the previous restaurant operations prior to acquisition by the current applicant. 2. Approval of the Denied Application Elements could not be exempt under the requirements of the California Environmental Quality Act under Class 1- Existing Facilities, and the Planning Commission's determination is overruled to the extent it found the Class 1 exemption appropriate to the Denied Application Elements. This exemption is not appropriate for the Denied Application Elements because: (1) State CEQA Guidelines Subsection 15300.2(b) makes the Class 1 categorical exemption inapplicable "when the cumulative impacts of successive projects of the same type in the same place, over time is significant." Written and oral testimony presented to the City Council and summarized herein, including testimony submitted by Woody's counsel, suggested that nighttime uses in the area contemplated in the Denied Application Elements, though in and of themselves non - significant, presented the possibility of cumulatively significant environmental impacts relating to land use incompatibility, noise (at least with regard to the character of noise spikes from screaming and fights, if not ambient noise levels), public safety, and public health. (2) State CEQA Guidelines Subsection 15300.2(c) makes the Class 1 categorical exemption inapplicable "where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances." Written and oral testimony presented to the City Council and summarized herein suggested that nighttime uses in the area contemplated in the Denied Application Elements presented unusual circumstances, given the City's focus on mixed use development, the 2006 General Plan policies encouraging residential uses in mixed use districts, giving preference to residential uses over commercial uses, and requiring special attention to the compatibility between these uses. These circumstances are especially unusual where residential uses are located within fifteen feet of commercial uses. Expansion of those commercial uses as contemplated in the Denied Application Elements would create impacts not characteristic of those for projects normally appropriate for Class 1 exemptions. In short, approval of the denied application elements could not be exempt from CEQA and would require, if favored by the City Council, an environmental impact report. 7 3. CEQA does not apply to the City Council's action on the Denied Application Elements. (State CEQA Guidelines Section 15270(a).) SECTION 3. CONDITIONAL USE PERMIT FINDINGS. In accordance with NBMC Sections 20.48.030 (Alcohol Sales) and 20.52.020 (Conditional Use Permit), the following findings and facts are set forth with regard to the application: Finding Supporting Action on the Approved Application Elements: A. The use, as limited under the Approved Application Elements, is consistent with the purpose and intent of Section 20.48.030 (Alcohol Sales) of the Zoning Code. Facts Supporting this Finding: A -1. The project, as limited under the Approved Application Elements has been reviewed and conditioned to ensure that the purpose and intent of Section 20.48.030 (Alcohol Sales) of the Zoning Code is maintained and that a healthy environment for residents and businesses is preserved. The service of alcoholic beverages is intended for the convenience of customers of the restaurant. Operational conditions of approval recommended by the Newport Beach Police Department (NBPD) relative to the sale of alcoholic beverages as limited by the Approved Application Elements will ensure compatibility with the surrounding uses and minimize alcohol - related impacts. A -2. Pursuant to Chapter 5.25 of the NBMC, the operator, as well as any future operators, has been conditioned to require them to obtain an Operator License from the NBPD to ensure the establishment, as limited by the Approved Application Elements, is operated in a safe manner and compatible with the neighborhood. A -3. Woody's is located within a mixed use district developed primarily with commercial uses. Across the Rhine Channel, the closest residential district is approximately 570 feet away. To the north, the closest residential use is approximately 200 feet away and residential uses associated with the future South Coast Shipyard Project will be approximately 15 feet away. To the west, the nearest residential uses are 230 feet away. The nearest park is the public beach adjacent to the West Ocean Front Boardwalk over 650 feet from the subject property. There are no day care centers, recreation facilities, places of religious assembly, or schools in close proximity to the subject property. 11 Findinq Support Action on the Denied Application Elements: B. The use, as proposed under the Denied Application Elements, is inconsistent with the purpose and intent of Section 20.48.030 (Alcohol Sales) of the Zoning Code. Facts Supporting this Finding: 8 -1. The project, as proposed under the Denied Application Elements cannot ensure that the purpose and intent of Section 20.48.030 (Alcohol Sales) of the Zoning Code is maintained and that a healthy environment for residents and businesses is preserved. In fact, evidence presented to the City Council suggested that crimes such as vandalism, public urination, vomiting, and the exposure of patrons and the public to the consequences of unsafe and drunken driving. Operational conditions of approval contained in the proposed Denied Application Elements did not, to the satisfaction of the NBPD, ensure compatibility with the surrounding uses and minimize the alcohol - related impacts enumerated in the testimony. B -2. Testimony given by the Police Department suggested that pursuant to Chapter 5.25 of the NBMC, the operator, as well as any future operators, could not be conditioned pursuant to an Operator License from the NBPD that would ensure the establishment is operated with the Denied Application Elements in a safe manner and compatible with the neighborhood. In fact, evidence suggested that even within its existing operating parameters, Woody's presented a high demand for law enforcement services and presented a low level of cooperation with regard to compliance with existing conditions of approval. B -3. Woody's is located within a mixed use district developed primarily with commercial uses. Across the Rhine Channel, the closest residential district is approximately 570 feet away. To the north, the closest residential use is approximately 200 feet away and residential uses associated with the future South Coast Shipyard Project will be approximately 15 feet away. To the west, the nearest residential uses are 230 feet away. The nearest park is the public beach adjacent to the West Ocean Front Boardwalk over 650 feet from the subject property. However, evidence presented at the hearing suggests that newer residential uses, which the 2006 General Plan is intended to incubate and encourage, are in proximity to Woody's. The proximity of Woody's to residential uses in the mixed use zone suggests that the establishment would be too close to residential uses to include the Denied Application Elements. Woody's is also in next -door proximity to other establishments selling alcoholic beverages for either off -site or on -site consumption, making the Denied Application Elements inappropriate under Chapter 20.48 of the NBMC. 0 In accordance with Section 20.52.020 of the Zoning Code, eating and drinking establishments classified as "Food Service, Late Hours" require the approval of a conditional use permit within the Mixed -Use Water Related (MU -W2) Zoning District. In accordance with Section 20.52.020.F of the Zoning Code, the following findings and facts in support of such findings are set forth: Finding Supporting Action on the Approved Application Elements: C. The use, as limited by the Approved Application Elements, is consistent with the General Plan and any applicable specific plan. Facts Supporting this Finding: C -1. The Mixed -Use Water Related (MU -W2 and MU -W) land use designations of the General Plan and Coastal Land Use Plan are intended to encourage water related uses intermixed with general commercial, visitor - serving commercial and residential uses. The operation of a "Food Service, Late Hours" use with alcoholic beverage sales, as limited by the Approved Application Elements, is consistent with the purpose and intent of this land use designation and the following 2006 General Plan Policy:. Noise Policy 1.7 Commercial /Entertainment Uses - Limit hours and /or require attenuation of commercial /entertainment operations adjacent to residential and other noise sensitive uses in order to minimize excessive noise to these receptors. C -2. Opening Woody's at 10:00 a.m., as limited by the Approved Application Elements, is consistent with the General Plan in that the earlier hour is compatible with the surrounding uses. C -3. Woody's is not part of a specific plan area. Findings Supporting Action on the Denied Application Elements: D. The use, as proposed under the Denied Application Elements, is inconsistent with the General Plan. Facts Supporting this Finding: D -1. The request to offer patron dancing and extend the hours of the outdoor patio area as proposed in the Denied Application Elements, is inconsistent with the following 2006 General Plan land use goal and policy on the basis that the extended hours would increase the total number of patrons after 11:00 p.m. and thereby increase the number of individuals exiting the facility during late hours. Police reports have documented the impacts of this activity in the area. "Land Use Goal 5.3 Mixed Use Districts Districts where residents and businesses are intermixed that are designed and 10 planned to ensure compatibility among the uses, that they are highly livable for residents, and are of high quality design reflecting the traditions of Newport Beach." "Land Use Policy 2.6 Visitor Serving Uses - Provide uses that serve visitors to Newport Beach's ocean, harbor, open spaces, and other recreational assets, while integrating them to protect neighborhoods and residents." D -2. The Denied Application Elements are inconsistent with Land Use Goal 5.3 Mixed Use Districts. Evidence presented at the hearing and outlined above cited provisions of the City's 2006 General Plan indicating that its intent — notwithstanding existing land use interface -- is to encourage residential development in mixed use districts by ensuring harmonious interface between commercial and residential uses. Testimony given at the hearing and summarized above suggests that existing interface between Woody's and nearby residential uses is already inharmonious, and that approving the Denied Application Elements would exacerbate that disharmony. D -3. While the Denied Application Elements might provide visitor opportunities, the Denied Application Elements would do so at the expense of protecting neighborhoods and residents, which is inconsistent with Land Use Policy 2.6 Visitor Serving Uses. At the core of the City's growth strategy is residents' quality of life. (General Plan, Vision Statement, p. 2 -3.) To that end, and because the City is primarily residential, the City's General Plan is intended to enhance the quality of life of residents, businesses, and visitors, in that order of priority. (General Plan, Vision Statement, p. 2 -3.) The General Plan requires a successful balancing of residential, business and visitor interests. (General Plan, Vision Statement, p. 2 -2.) The Denied Application Elements might benefit Woody's as a business, but at the expense of the quality of life of neighborhoods and residents. (See General Plan, Vision Statement, p. 2 -3 [residential quality of life is of highest concern].) Moreover, the Denied Application Elements would not enhance the quality of life of residents of the Peninsula specifically, or the City as a whole as demonstrated by the numerous residents who spoke in opposition to the expansion. The proximity of the new mixed use development has the potential to also result in a negative interface with Woody's which would be exacerbated by the proposed Denied Application Elements. (See §1, ¶18 above.) Finding Supporting Action on the Approved Application Elements: E. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code. Facts in Support of this Finding: 11 E -1. Woody's is located in the Mixed Use — Water Related Zoning District (MU -W2), and eating and drinking establishments classified as "Food Service, Late Hours" require the approval of a conditional use permit. E -2. As conditioned and as limited by the Approved Application Elements, the project will comply with Zoning Code standards for eating and drinking establishments. Conditions are included related to on -sale alcoholic beverage activities, including the training of personnel, and the provision of security personnel while live entertainment is offered. E -3. Pursuant to Chapter 5.25 of the NBMC, as limited by the Approved Application Elements, the project has been conditioned to require the applicant, and any future operator of the eating and drinking establishment, to obtain an Operator License from the NBPD in order to maintain operating hours beyond 11:00 p.m., and to modify operations, as proposed. Finding Supporting Action on the Approved Application Elements: F. The design, location, size, and operating characteristics of the use, as limited by the Approved Project Elements, are compatible with the allowed uses in the vicinity. Facts in Support of this Finding: F -1. The project, as limited by the Approved Application Elements, has been reviewed and conditioned to ensure that potential conflicts with the surrounding land uses are minimized to the extent possible to maintain a healthy environment for both residents and businesses. F -2. As conditioned and as limited by the Approved Application Elements, the approved seating plan shall be maintained and the outdoor patio area closed at 11:00 p.m. on the basis that extending the hours of the outdoor patio area increases the number of patrons at the facility beyond 11:00 p.m., which then increases the number of individuals exiting into the adjacent neighborhood after closing. The NBPD has documented extensive reports related to activities during this period. F -3. In order to further reduce the potential impact on neighboring properties, a condition of approval is required to prohibit recorded music or other types of sound amplification within the outdoor patio area after 10:00 p.m. Additionally, conditions of approval require the doors exiting the building to the outdoor patio area to remain closed whenever live entertainment is performed inside the building, except in the case when persons are entering and exiting the building. F -4. As limited by the Approved Application Elements, the location of the valet parking pick -up and drop -off area is shielded from the residences by the restaurant building, thereby mitigating noise impacts from this activity to residential uses across and along the Rhine Channel. 12 F -5. As limited by the Approved Application Elements, adequate number of parking spaces are available on -site and the valet parking service serving the nighttime operation will prevent traffic backing up onto Newport Boulevard. The waiver of six (6) parking spaces of the on -site parking caused by the elimination of the valet parking service during daytime hours of the operation is offset by the lower parking demand for the use based upon on -site observations and the availability of the municipal parking lots in the vicinity. The use of the valet parking service after 6:00 p.m. on Friday and Saturday night and holidays will maximize on -site utilization of the parking lot and in the case that the lot is full, parking is available in the municipal metered parking lot across the street (the meters are not in effect after 6:00 p.m. daily). Therefore, the waiver of six (6) parking spaces for the daytime and some nighttime operational periods is reasonable in this particular case. Finding Supporting Action on the Denied Application Elements: G. The design, location, size, and operating characteristics of the use as proposed in the Denied Application Elements, are incompatible with the allowed uses in the vicinity. Facts Supporting this Finding: G -1. The dancing activities anticipated in the Denied Application Elements would result in an unacceptable increase in the number patrons entering and exiting the building, thereby exposing the increased noise levels of the interior and the noise generated by the live entertainment and /or dancing to the surrounding area. G -2. The existing outdoor patio area is surrounded by glass walls which aid to minimize noise from emanating from this area, but which are not adequately effective in controlling noise as evidenced by noise complaints received by the Police Department and the correspondence received. G -3. The effectiveness of the proposed patio cover has been evaluated by two acoustical engineers who indicate it will significantly reduce the noise levels from the patio area, but noise emanating from other areas of the project, especially the parking area and its entrance, will not be buffered by the patio cover. Finding Supporting Action on the Approved Application Elements: H. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities. Facts Supporting this Finding: H -1. Woody's is an eating and drinking establishment that has existed in this location since the 1960's. The project site has proven to be physically suitable in size to 13 accommodate the restaurant use as limited by the Approved Application Elements. H -2. Woody's is located on Newport Bay between 22nd and 26th Street overlooking the Rhine Channel and is surrounded by similar commercial uses located to the north (next door), and the northwest of the use. This is an appropriate location for an eating and drinking establishment, as limited by the Approved Application Elements. The restaurant use contemplated in the Approved Application Elements is complementary to the existing commercial uses in the area, as well as convenient to serve the residential uses located to the north and east across the Rhine Channel in relation to the project site. H -3. The Traffic Engineer has previously reviewed the configuration of the parking lot, as well as the valet parking plan, and has determined the parking lot design functions safely and does not prevent emergency vehicle access to the establishment. H -4. The site is currently served by public services and utilities. Finding Supporting Action on the Denied Application Elements: 1. The site is not physically suitable for the Denied Application Elements in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities. Facts Supporting this Finding: 1 -1. Woody's is an eating and drinking establishment that has existed in this location since the 1960's. The project site has proven to be physically suitable in size to accommodate the restaurant use. However, testimony given at the hearing was that the site is inadequate for additional traffic and the side effects of its functioning primarily as a drinking establishment, especially between 11:00 p.m. and 2:00 a.m. Findina SUDDortina Action on the ADDroved Application Elements J. Operation of the use at the location proposed, as limited by the Approved Application Elements, would not be detrimental to the harmonious and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Facts Supporting this Finding: J -1. The project, as limited by the Approved Application Elements, has been reviewed and appropriately conditioned to ensure the continued operation of the existing 14 eating and drinking establishment as a restaurant, and not as a bar /nightclub, will not be detrimental to the community. Finding Supporting Action on the Denied Application Elements: K Operation of the use at the location, as proposed in the Denied Application Elements, would be detrimental to the harmonious and orderly growth of the City, and endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Facts Supporting this Finding: d-z? K -1 The Denied Application Elements would be detrimental to the public convenience, health, interest, safety, and general welfare because patron dancing would contribute to an atmosphere more in line with a night club atmosphere, rather than the approved eating and drinking establishment. Testimony provided at the hearing suggests that the existing use at Woody's already creates these sort of hazards due to intoxicated drivers, vomit and public urination, and damage and littering on neighborhood residents. Although ambient noise would not change much, noise "spikes" from patrons leaving Woody's late at night deprive local residents of sleep and peaceful enjoyment of their property. d-X K -2 The applicant has operated the existing eating and drinking establishment in this location since 2002, and is required under the Approved Application Elements to proactively control noise generated by patrons of the restaurant. The operator will be required to obtain an Operator License from the NBPD to enhance the control of noise, loitering, litter, disorderly conduct, parking /circulation, and other potential disturbances resulting from the existing establishment, and will provide the NBPD with means to modify, suspend, or revoke the operator's ability to maintain late -hour operations if objectionable conditions occur. However, the evidence suggested that these controls would be inadequate to mitigate the impacts of the Denied Application Elements because extended hours would extend impacts related to noise, parking, and disorderly conduct after 11:00 p.m. and because focusing Woody's operations on alcoholic beverages sales rather than food services would produce more patrons creating issues relating to intoxication and disorderly conduct in a neighborhood where the City is trying to foster residential uses. SECTION 4. REQUIRED FINDINGS —VARIANCE. In accordance with NBMC Section 20.52.090 (Variance), the following findings and facts in support of such findings isare set forth: Finding in Support of the Approved Application Elements: 15 A. There are special or unique circumstances or conditions applicable to the subject property (e.g., location, shape, size, surroundings, topography, or other physical features) that do not apply generally to other properties in the vicinity under an identical zoning classification to the to the extent limited by the Approved Application Elements. Facts in Support of this Finding: A -1. The location of the subject property is unique in that it is located on the harbor where a bulkhead exists. The patio cover is proposed to mitigate noise generated on an existing outdoor patio which encroaches into the 10 -foot bulkhead setback. Covering the patio to implement the desired mitigation necessitates an encroachment into the bulkhead setback. Finding in Support of the Approved Application Elements: B. Strict compliance with Zoning Code requirements would deprive the subject property, as limited by the Approved Application Elements, of privileges enjoyed by other properties in the vicinity and under an identical zoning classification in terms of its physical characteristics. Facts in Support of Finding: 8 -1. Two parcels located north of the subject property are also constructed at the bulkhead. American Junkie, located immediately to the north, also has an outdoor patio located at or beyond the bulkhead line which is not covered. Finding in Support of the Approved Application Elements: C. Granting of the Variance is necessary for the preservation and enjoyment of substantial property rights of the applicant. Facts in Support of Finding: C -1. The applicant seeks to construct a patio cover to mitigate noise generated by the use of an existing outdoor patio under the existing parameters of the applicant's permit. Allowing the cover to be constructed within the setback area is anticipated to reduce noise complaints, as limited by the Approved Application Elements, while maintaining the closure of the outdoor patio area by 11:00 p.m., daily. Finding in Support of the Approved Application Elements: D. Granting of the Variance will not constitute a grant of special privilege inconsistent with the limitations on other properties in the vicinity and in the same zoning district. 16 Facts in Support of Finding: D -1. Two parcels located north of the subject property are also constructed at the bulkhead. American Junkie, located immediately to the north, also has an outdoor patio located at or beyond the bulkhead line which is not covered. Finding in Support of the Approved Application Elements: E. Granting of the Variance will not be detrimental to the harmonious and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood. Facts in Support of Finding: E -1. Two parcels located north of the subject property are also constructed at the bulkhead. American Junkie, located immediately to the north, also has an outdoor patio located at or beyond the bulkhead line which is not covered. Finding in Support of the Approved Application Elements: F. Granting of the Variance, as limited by the Approved Application Elements, will not be in conflict with the intent and purpose of this Section, this Zoning Code, the General Plan, or any applicable specific plan. Facts in SUDDort of Findin F -1. The encroachment would allow for a patio cover to encroach into the bulkhead setback. The patio cover is an accessory structure which will not extend the useful life of the primary structure. SECTION 5. DECISION. NOW, THEREFORE, the City Council of the City of Newport Beach hereby resolves as follows: 1. Subiect to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference, he City Council of the City of Newport Beach hereby modifies the decision of the Planning Commission regarding Use Permit No. UP2011 -010 and upholding approval of Variance No. VA2013 -006, to approve: 1) extending the opening hour of the restaurant and outdoor patio area from 11:00 a.m. to 10:00 a.m., daily; 2) limiting the provision of valet parking to only Friday and Saturday nights and holidays from 6:00 p.m. to closing; 3) waiving six (6) parking spaces of the required parking spaces when valet service is not in use; and 4) allowing the patio cover to encroach into the bulkhead setback; but deny: 2) extending the closing hour of the outdoor patio area from 11:00 p.m. to 17 2:00 a.m. on Friday and Saturday nights and thereby retaining the daily 11:00 p.m. closing; 3) patron dancing at any time; 4) removing tables and chairs within the restaurant and outdoor patio area s l3jeGt to the GeRditieRS sot forth Exhibit A nwh'nh is attached hereto and 'n rated by reference-. 2. This resolution supersedes Use Permit No. 3065, 3065 (amended); and Outdoor Dining Permit No. 1, which shall become null and void upon effect of this Conditional Use Permit No. UP2011 -010 and Variance No. VA2013 -006. 3. Councilmembers are exempt from paying the filing fee provided by NBMC Section 20.64.030(B)(2) under the City's long- standing policy and practice of not requiring Councilmembers to pay a filing fee because their appeals are taken for the benefit of the City's residents. Since 2008, there have been eleven (11) appeals of Planning Commission decisions initiated by City Council Members and the City Clerk has not required the payment of an appeal fee under the City's long- standing policy and practice. 4. If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared invalid or unconstitutional. 5. This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. PASSED, APPROVED AND ADOPTED THIS 12t' DAY OF NOVEMBER, 2013. AYES: NOES: ABSTAIN ABSENT: BY: Keith D. Curry, Mayor is BY: Leilani I. Brown, City Clerk 19 EXHIBIT "A" CONDITIONS OF APPROVAL (Project- specific conditions are in italics) PLANNING 1. The development shall be in substantial conformance with the approved site plan, floor plans, and building elevations stamped and dated with the date of this approval (Except as modified by applicable conditions of approval). Prior to implementation of the activities approved by this application, the applicant shall submit a revised floor plan for approval by the Community Development Director that reflects the limitations and restrictions imposed by the conditions of approval. 2. Conditional Use Permit No. UP2011 -010 and Variance No. VA2013 -006 shall expire unless exercised within 24 months from the date of approval as specified in Section 20.54.060 of the Newport Beach Municipal Code ( "NBMC"), unless an extension is otherwise granted. 3. The hours of operations of the restaurant shall be limited to between 10:00 a.m. and 2:00 a.m., daily. The hours of the outdoor patio area are limited to 10:00 a.m. and 11:00 p.m. daily. In no case shall the eating and drinking establishment be permitted to operate beyond the hour of 2:00 a.m., daily. 4. The applicant/operator, including any future operator, shall secure and maintain an Operator License issued by the Chief of Police, pursuant to Chapter 5.25 of the NBMC. The Operator License may be require additional and /or more restrictive conditions to regulate and control potential late -hour nuisances associated with the operation of the establishment. 5. All doors and windows of the interior, including the patio cover, of the eating and drinking establishment shall remain closed whenever live entertainment occurs after 10:00 p.m., except for the ingress and egress of patrons and employees. Doors shall not be propped open, or remain open longer than necessary, to allow for the ingress and egress of patrons and employees. 6. Full meal service shall be provided and available for ordering until 10:00 p.m. and an abbreviated menu that includes heavy appetizers after 10:00 p.m. daily and serving until a half -hour before closing. 7. The outdoor patio area shall be used in conjunction with the eating and drinking establishment. No special events /promotional activities shall be allowed within the outdoor patio area. 8. The outdoor patio area shall be limited to 709 square feet in area. 9. The outdoor patio 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 patio in the outdoor patio 20 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. 10. All employees shall park on -site or in the municipal parking lots in the vicinity. 11. The net public area of the interior portion of the eating and drinking establishment shall not exceed 1,173 square feet and the outdoor patio area shall not exceed 709 square feet for a total of 1,882 square feet of net public area. 12. A minimum of 26 parking spaces shall be provided on -site when valet service is offered. A payment of in lieu parking fees for 10 spaces for the operation of the eating and drinking establishment is required. Valet parking service shall be provided Friday and Saturday nights an holidays after 6:00 p.m. When valet service is not offered, a minimum of 20 parking spaces shall be provided on -site. 13. The applicant/operator shall conspicuously post and maintain signs at all outdoor dining, waiting, smoking and parking areas indicating to patrons the proximity of the restaurant and public dock and boat slip areas to the residential areas, requesting patrons: "Be courteous and respectful of our residential neighbors while outside the establishment." 14. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 15. The applicant/operator shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this Conditional Use Permit and /or variance. 16. The applicant/operator shall maintain a copy of the most recent City permit conditions of approval on the premises and shall post a notice that these are available for review on the premises. The posted notice shall be signed by the operator. 17. This approval was based on the particulars of the individual case and does not in and of itself or in combination with other approvals in the vicinity or Citywide constitute a precedent for future approvals or decisions. 18. This Conditional Use Permit and Variance may be modified or revoked by the City Council or Planning Commission should they determine that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 19. Approval of Conditional Use Permit No. UP2011 -010 is for the operation of an eating and drinking establishment defined as "Food Service, Late Hours" per Title 20 of the NBMC, and does not permit or authorize the use or operation of a bar, 21 tavern, cocktail lounge, nightclub or commercial recreational entertainment venue. 20. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to this Conditional Use Permit or the processing of a new Conditional Use Permit. 21. The type of alcoholic beverage license issued by the California Board of Alcoholic Beverage Control shall be a Type 47 in conjunction with the service of food as the principal use of the facility. Any upgrade in the alcoholic beverage license shall be subject to the approval of an amendment to this Conditional Use Permit, and may require the approval of the Planning Commission. 22. All landscaped areas shall be maintained in a healthy and growing condition and shall receive regular pruning, fertilizing, mowing and trimming. All landscaped areas shall be kept free of weeds and debris. All irrigation systems shall be kept operable, including adjustments, replacements, repairs, and cleaning as part of regular maintenance. 23. Water should not be used to clean paved surfaces such as sidewalks, driveways, parking areas, etc. except to alleviate immediate safety or sanitation hazards. 24. The washing of the outdoor patio area with any cleaning solutions or the use of high pressure or steam cleaning devices is prohibited. 25. Lighting shall be in compliance with applicable standards of the Zoning Code. The site shall not be excessively illuminated based on the luminance recommendations of the Illuminating Engineering Society of North America, or, if in the opinion of the Community Development Director, the illumination creates an unacceptable negative impact on surrounding land uses or environmental resources. The Community Development Director may order an increase or the dimming of light sources or other remediation upon finding that the site is not adequately illuminated or is excessively illuminated. 26. All noise generated by the existing eating and drinking establishment use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the NBMC. The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher: Measured at the property line of commercially zoned Between the hours of Between the hours of 7:00 a.m. and 10:00 10:00 p.m. and 7:00 p.m. a. m. 22 If 4reI :7G1 Measured at the property line of residentially zoned property: 55 dBA 50 dBA measures in the interior or a 45 dBA 40 dBA residential structure 27. Prior to issuance of building permits, the construction plans and materials for the proposed patio cover shall be reviewed by an acoustical engineer retained by the City to verify the potential to mitigate the noise levels. 28. Submit architectural and structural plans and calculations for plan review. Two (2) building permits shall be required for the installation of two (2) patio covers. Patio cover shall meet the requirement for Class A roofing. 29. Awnings and canopies shall be designed and constructed to withstand wind or other lateral loads and live loads as required by California Building Code Chapter 31 Section 3105.3. 30. Canopies shall be constructed with an approved covering that meets the fire propagation performance criteria of NFPA 701 or has a flame spread index not greater than 25 when tested in accordance with ASTM E 84 or UL 723 as per C.B.0 Sec. 3105.4. 31. Occupant load and seating arrangement under new exterior awning area must meet California Building Code Chapter 10. These items will be reviewed at the time of plan check. 32. Prior to the final building permit being issued for the outdoor patio covers, an acoustical engineer retained by the City at the cost to the applicant shall conduct noise measurements around the enclosure, at the property lines, and at the residential uses in the vicinity to verify compliance with the applicable noise control requirements of the NBMC. 33. A modification for the patio cover is required to be filed with the Building Division, for compliance to Section 705.11 of the California Building Code. 34. Prior to certificate of occupancy for use of the outdoor patio beyond 11:00 p.m., an acoustical engineer retained by the City at the cost to the applicant shall conduct noise measurements around the enclosure, at the property lines, and at the residential uses in the vicinity to verify compliance with the applicable noise control requirements of the NBMC. 35. The applicant/operator of the facility shall be responsible for and shall actively control any noise generated by the subject facility including, but not limited to, noise generated by patrons, food service operations, and mechanical equipment. 23 36. Should the property be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing agent. 37. Live entertainment shall be allowed in the interior of the eating and drinking establishment in conjunction with the operator obtaining and maintaining a live entertainment permit from the City. 38. No outside paging system or loudspeaker device shall be used in conjunction with this establishment. 39. No live entertainment shall be permitted in the outdoor patio area. Recorded music or other types of sound amplification within the outdoor patio area shall only be audible to the audience within this area, and shall cease after the hour of 10:00 p.m. daily. 40. Dancing shall be prohibited. 41. The applicant /operator shall provide licensed security personnel while offering live entertainment. A comprehensive security plan for the permitted uses shall be submitted for review and approval by the Newport Beach Police Department (NBPD). The procedures included in the plan and any recommendations made by the NBPD shall be implemented and adhered to for the life of the Conditional Use Permit. 42. Trash receptacles for patrons shall be conveniently located both inside and outside of the establishment, however, not located on or within any public property or right -of -way. 43. The exterior of the business shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. 44. The applicant/operator shall ensure that the trash dumpsters and /or receptacles are maintained to control odors. This may include the provision of either fully self - contained dumpsters or periodic steam cleaning of the dumpsters, if deemed necessary by the Code Enforcement Division. Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14, including all future amendments (including Water Quality related requirements). 45. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10:00 p.m. and 8:00 a.m. the following morning, unless otherwise approved by the Community Development Director, and may require an amendment to this Use Permit. 46. Storage outside of the building in the front or at the rear of the property shall be prohibited, with the exception of the required trash container enclosure. 24 47. No recreational vehicles, boats, food trucks, portable street kitchens or similar vehicles shall be stored at any time at the subject site. 48. A Special Events Permit is required for any event or promotional activity outside the normal operational characteristics of the approved use, as conditioned, or that would attract large crowds, involve the sale of alcoholic beverages, include any form of on -site media broadcast, or any other activities as specified in the NBMC to require such permits. 49. Kitchen exhaust fans shall be installed /maintained in accordance with the Uniform Mechanical Code. The issues with regard to the control of smoke and odor shall be directed to the South Coast Air Quality Management District. 50. All exits shall remain free of obstructions and available for ingress and egress at all times. 51. Strict adherence to maximum occupancy limits is required. 52. The use of private (enclosed) "VIP" rooms or any other temporary or permanent enclosures separate from public areas are prohibited. 53. All owners, managers and employees selling, serving or giving away alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for selling alcoholic beverages. The certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service or other certifying /licensing body, which the State may designate. The establishment shall comply with the requirements of this section within 180 days of the issuance of the certificate of occupancy. Records of each owner's, manager's and employee's successful completion of the required certified training program shall be maintained on the premises and shall be presented upon request by a representative of the City of Newport Beach. 54. Any event or activity staged by an outside promoter or entity, where the restaurant owner or his employees or representatives share in any profits, or pay any percentage or commission to a promoter or any other person based upon money collected as a door charge, cover charge or any other form of admission charge, including minimum drink orders or sale of drinks is prohibited. 55. No alcoholic beverages may be consumed on any property adjacent to the licensed premises under the control of the license. 56. No "happy hour" type of reduced price alcoholic beverage promotion shall be allowed except in conjunction with food service available from the full service menu. There shall be no reduced price alcoholic beverage promotion after 10:00 p.m. 57. "VIP" passes, as well as door charges, cover charges or any other form of admission charge, and minimum drink orders are prohibited. 25 58. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food and retail sales during the same period. The licensee shall maintain records that reflect separately the gross sale of food and the gross sales of alcoholic beverages of the licensed business. Said records shall be kept no less frequently than on a quarterly basis and shall be made available to the Community Development Department and NBPD on demand. 59. No on -site radio, television, video, film or other media broadcasts from the establishment that includes the service of alcoholic beverages shall be permitted without first obtaining an approved Special Event Permit issued by the City. This prohibition of media broadcasts includes recordings to be broadcasted at a later time. 60. All signs shall be in conformance with the provisions of NBMC Chapter 20.42, or any successor ordinance. 61. There shall be no exterior advertising or signs of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages. Interior displays of alcoholic beverages or signs that are clearly visible to the exterior shall constitute a violation of this condition. 62. No games or contests requiring or involving the consumption of alcoholic beverages shall be permitted. 63. A total Occupant Load of 164 occupants, which includes a maximum of 66 occupants on the outdoor patio and remaining 99 occupants within the restaurant, shall be maintained at all times. 64. Accessibility upgrades shall be required pursuant to Section 1134.2.1 of the California Building Code. 65. To the fullest extent permitted by law, applicant /operator shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of the subject restaurant facility (currently operating as Woody's Wharf Restaurant) including, but not limited to, the Use Permit No. UP2011 -010 and Variance No. VA2013 -006. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant/operator, City, and /or the parties initiating or bringing such proceeding. The applicant/operator shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in 26 enforcing the indemnification provisions set forth in this condition. The applicant/operator shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. 27