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HomeMy WebLinkAbout2008-64 - Fury Rok & Rol SushiRESOLUTION NO. 2008- 64 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING USE PERMIT NO. 2008 -043 ON PROPERTY LOCATED AT 4221 DOLPHIN STRIKER WAY (PA2008 -122) WHEREAS, in 1973, the property located at 4221 Dolphin Striker Way, Newport Beach, California, legally described as Parcel 1 of Parcel Map No. 45 -23 ( "Property ") was developed as an El Torito Restaurant, prior to the need to obtain a use permit; and WHEREAS, on October 24, 1985, the Planning Commission considered and approved Use Permit No. 3162 when the existing restaurant expanded dining and drinking to a patio existing on the Property at the time; and WHEREAS, on July 7, 2005, the City approved an amendment to Use Permit No. 3162 and Use Permit No. 2005 -018 (PA2005 -087) to allow live entertainment and dancing as accessory uses to the existing restaurant; and WHEREAS, on or about June 22, 2007, Fury Rok & Rol Sushi Lounge opened for business at the Property; and WHEREAS, the operators of Fury Rok & Rol Sushi Lounge are Brian Schillizzi and David Gonzales and the business is owned by Fury, LLC, whose sole member is Fury Management, Inc. (collectively "Fury"); and WHEREAS, on or about January 4, 2008, the Planning Director for the City of Newport Beach determined that there were reasonable grounds for revocation of Use Permit No. 3162 as Use Permit No. 2005 -018 based on violations of the conditions of approval; and WHEREAS, on January 17, 2008, the Planning Commission held a hearing to set a date to consider whether Use Permit No. 3162 and Use Permit No. 2005 -018 should be revoked; and WHEREAS, at the conclusion of the January 17, 2008, hearing, the Planning Commission determined that said hearing should occur on February 21, 2008; and WHEREAS, on February 20, 2008, Fury submitted a claim alleging, among other things, that they had sustained damages as a result of the City's violation of Claimants' rights under the United States Constitution, the California Constitution, federal law, state law and common law and identifying Tod Ridgeway as the owner of the Property ( "Tort Claim "); and WHEREAS, on February 21, 2008, the Planning Commission held a hearing to consider the revocation of Use Permit No. 3162 and Use Permit No. 2005 -018; and WHEREAS, at the conclusion of the hearing on February 21, 2008, the Planning Commission determined that a hearing officer should take evidence and submit proposed findings and recommendations for consideration by the Planning Commission; and WHEREAS, on or about April 30, 2008, the hearing officer submitted proposed findings and recommendations (hereinafter ( "Hearing Officer Findings ") that recommended revocation of Use Permit No. 3162 and Use Permit No. 2005 -018; and WHEREAS, on or about June 24, 2008, the City, the Fury, Tod Ridgeway, and the owner of the Property, Ridgeway of Whitney, a California general partnership, entered into a settlement agreement which provided in part that the City Council would consider the approval of Use Permit No. 2008 -043 at a public hearing; and WHEREAS, on June 24, 2008, the City Council held a noticed hearing in the City Hall Council Chambers, at 3300 Newport Boulevard, Newport Beach, California at which time the project application was considered; and WHEREAS, notice of time, place and purpose of the public hearing was given in accordance with law and testimony was presented to, and considered by, the City Council at the hearing; and WHEREAS, a use permit for a 7,996 square -foot, full - service, eating and drinking establishment with a net public area of 4,162 square feet, to allow full alcohol beverage service with a Type "47" ABC License (On -Sale General Eating Place), and to allow live entertainment and dancing as accessory uses to the eating and drinking establishment at the Property has been prepared in accordance with Section 20.91.035 of the Newport Beach Municipal Code based on the following findings and facts in support of such findings: 1. Finding: That the proposed location of the use is in accord with the objectives of this code and the purposes of the district in which the site is located. Facts in Support of Finding: The subject property is located within the Newport Place Planned Community (PC -11) Zoning District. The restaurant is located within the airport commercial area and surrounding land uses are dominated by commercial and professional offices. Restaurant uses with dancing and live entertainment can be expected to be found in this and similar locations and are complimentary to the commercial uses. In accordance with the requirements of Chapter 20.89, the location of the proposed Alcoholic Beverage Outlet was considered with respect to issues of public necessity and impacts to surrounding land uses. The use will provide a public convenience by offering alcoholic beverage sales to restaurant patrons. The location of the use is considered appropriate given the fact that the site is not located in close proximity to day care centers, schools or places of religious assembly. In addition, the settlement agreement and conditions of approval contain additional restrictions on the use of the Property to address the Police Department's concerns related to the prior operations at the Property. 2 2. Finding: That the proposed location of the use permit and the proposed conditions under which it would be operated or maintained will be consistent with the General Plan and the purpose of the district in which the site is located; will not be detrimental to the public health, safety, peace, morals, comfort, or welfare of persons residing or working in or adjacent to the neighborhood of such use; and will not be detrimental to the properties or improvements in the vicinity or to the general welfare of the City. Facts in Support of Finding: The proposed restaurant is consistent with the land use designation of the General Plan. All development regulations of the PC -11 Zoning District would be met, including building setbacks, structure height limitations and development limits. The restaurant has been conditioned in such a manner to meet the intent of the Zoning Code regulations, including any specific conditions required for the proposed restaurant and to require strict adherence to safety and noise regulations. In accordance with the requirements of Chapter 20.89, approval of the Alcoholic Beverage Outlet is subject to the consideration of factors relating to over - concentration of alcohol licenses, crime rates including numbers of alcohol related crimes, and impacts to the surrounding community. The Police Department has reviewed the project and has determined that the sale of alcoholic beverages in conjunction with the proposed restaurant, given the additional restrictions on the use of the Property as contained in the conditions of approval and settlement agreement, should not result in an increase in alcohol - related crimes and will not result in an over - concentration of alcoholic beverage outlets since the request will not result in an increase in the number of ABC licenses within the reporting district. The proposed restaurant, including alcohol beverage sales, will not have a negative impact on the surrounding community, provided the conditions of approval are complied with. 3. Finding: That the proposed use will comply with the provisions of this code, including any specific condition required for the proposed use in the district in which it would be located. Facts in Support of Finding: The request to allow the operation of a restaurant, which includes the serving of alcoholic beverages on the premises and the proposed conditions under which it would be operated or maintained, are consistent with the General Plan and the purpose of the district in which the site is located. The request is located within the existing building that is designated and zoned for this commercial activity. The use has been conditioned in such a manner to minimize the impacts associated with it. The plan, as conditioned, meets the design and development standards for eating and drinking establishments. In accordance with the requirements of Chapter 20.89, the project has been conditioned to avoid potential negative impacts on the surrounding community. 3 WHEREAS, the project qualifies for a Categorical Exemption pursuant to Section 15301 (Existing Facilities) of the California Environmental Quality Act in that the proposed interior improvements to accommodate the new restaurant are minor in nature and are within the tenant space formerly occupied by an eating and drinking establishment; and NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Newport Beach hereby approves Use Permit No. 2008 -043, subject to Conditions of Approval in Exhibit "A" attached hereto and made part hereof. Use Permit No. 3162 and Use Permit No. 2005 -018 are hereby rescinded and superseded by Use Permit No. 2008 -043. This resolution shall take effect immediately upon adoption. Passed and adopted by the City Council of Newport Beach at a regular meeting held on June 24, 2008 by the following vote to wit: Adopted this 24th day of June, 2008. An ') Mayor ATTEST: City Clerk 4 EXHIBIT "A" CONDITIONS OF APPROVAL 1. The eating and drinking establishment shall be operated and maintained in substantial conformance with the site plan and floor plan including the seating arrangements dated June 17, 2008 (Approved Plans). 2. The approval of this Use Permit supersedes and rescinds Use Permit Nos. 3162 and 2005 -018. 3. The primary use, as depicted on the Approved Plans, is an eating and drinking (restaurant) establishment as defined in Section 20.05.050.K of the Newport Beach Municipal Code. Full menu food service shall be available for ordering at all times that the restaurant establishment is open for business. No "late- night" special menu is allowed. The operational character of the use shall not be changed to a bar, tavern, cabaret, nightclub, cocktail lounge or commercial recreational entertainment venue as a primary use. A bar, tavern, cabaret, nightclub, cocktail lounge or commercial recreational entertainment venue shall not be an authorized use pursuant to this Use Permit. 4. The total net public area for the entire restaurant shall not exceed 4,162 square feet and 203 seats. The existing patio shall only be used as "smoking patio' with no live entertainment, dancing, dining and drinking allowed. 5. Live entertainment and dancing shall be permitted as accessory uses (less than twenty percent [20 %] or 833 square feet of the net public area) and shall be conducted only in conjunction within the limitations set forth in Conditions 14 and 15 below. 6. Strict adherence to maximum occupancy limit of 297 persons in the interior of the building and 15 persons on the smoking patio is required. The maximum occupancy limits shall be posted and the location of maximum occupancy postings in sections of the building and smoking patio shall be inspected and approved by the Building Department or Fire Department to ensure the location is readily visible to employees, patrons and public safety personnel. 7. Use Permit No. 2008 -043 shall expire unless exercised within 24 months from the date of approval as specified in Section 20.91.050 of the Newport Beach Municipal Code, unless an extension is otherwise granted. 8. Hours of operation shall be from 10:00 a.m. to 12:00 a.m., Sunday - Wednesday, and from 10:00 a.m. to 2:00 a.m., Thursday- Saturday. The establishment shall be allowed to be opened until 2:00 a.m. on 3 holidays per year, if those holidays land on Sunday through Wednesday night. 9. A minimum of one parking space for each 40 square feet of "net public area" shall be provided for the subject restaurant. Based on the Approved Plans, a total of 105 parking spaces shall be provided, of which 16 spaces shall be located at an off -site location. 10. A minimum of 16 off -site parking spaces shall be provided on property described as Parcel No. 1 of Parcel Map 83 -705, located at 1500 Dove Street and 4141 MacArthur Boulevard. Said parking spaces shall be provided for the duration of the restaurant use. 11. The restaurant operator shall maintain the recorded covenant against the property comprising the approved off - street parking location, the form and content of which is acceptable to the City Attorney, binding the applicant and its successors in interest in perpetuity, to provide a minimum of 16 parking spaces for the subject restaurant. This covenant shall continue in effect until such time as the restaurant has been discontinued or suitable replacement parking is provided at a location acceptable to the City Council. 12. The restaurant employees shall be required to use the 16 off -site parking spaces. 13. All owners, managers and employees involved in the selling of 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. All existing owners, managers and employees involved in the selling of alcoholic beverages shall comply with the requirements of this section within 90 days of the approval of the Use Permit and all new owners, managers and employees involved in the selling alcoholic beverages shall comply with the requirements of this section prior to their involvement in the selling of alcoholic beverages at the restaurant. 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. 14. Prior to the commencement of live entertainment activity, the applicant shall obtain a Live Entertainment Permit issued pursuant to Chapter 5.28. of the Newport Beach Municipal Code. All live entertainment activities shall be in full compliance with the conditions of the Live Entertainment Permit. No audible paging system or amplified music shall be allowed outside the building. 15. Prior to the commencement of patron dancing, the applicant shall be required to obtain a Cafe Dance Permit issued pursuant to Chapter 5.32 of the Newport Beach Municipal Code. All dancing activities shall be in full compliance with the conditions of the Cafe Dance Permit. 16. Live entertainment and dancing shall be limited to the areas shown on the approved plans. 17. Should this business or either alcohol license be sold or otherwise come under different ownership or control, any future owners, operators or assignees shall be 2 notified in writing of the conditions of this approval by the current owner /operator. Future owners, operators or assignees shall submit, within 30 days of transfer or sale of the business or alcohol license, a letter to the Planning Department acknowledging their receipt and acceptance of the limitations, restrictions and conditions of approval of this Use Permit. 18. The Use Permit or any of the conditions of this Use Permit may be modified or revoked by the City Council or Planning Commission should they determine that the business is not operated in full compliance with any of the conditions of this Use Permit or any other required permit, and /or the 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. A grease interceptor of adequate size is required in association with food preparation activities. 20. The alcoholic beverage outlet operator shall take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks and areas surrounding the alcoholic beverage outlet and adjacent properties during business hours, if directly related to the patrons of the subject alcoholic beverage outlet. 21. The type of alcoholic beverage license issued by the California Board of Alcoholic Beverage Control shall be a Type "47" On -Sale General Eating Place license for full alcohol service ( "bona fide eating place ") and on -site consumption only, and only in conjunction with the service of food as the principal use of the facility. The sale of alcoholic beverages is prohibited for off -site consumption. Any change in the alcoholic beverage license shall be subject to the approval of an amendment to this application and may require the approval of the Planning Commission or City Council. 22. The business shall comply with all federal, state, and local laws. 23. A maximum of 6 special events (i.e. any event or promotional activity outside the normal operational characteristics of the restaurant business that would attract large crowds, involve the sale of alcoholic beverages, include any form of on -site media broadcast, or any other activities as specified in the Newport Beach Municipal Code relating to Special Event Permits) shall be permitted each calendar year. Prior to having a special event, a Special Event Permit shall be obtained in accordance with the provisions of Chapter 11.03 of the Newport Beach Municipal Code. Any special events in excess of 6 special events per calendar year shall require the approval of an amendment to this Use Permit. 24. Any event or activity staged by an outside promoter or entity, where the restaurant owner or his /her 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. 7 25. 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. 26. Bottle service shall be prohibited unless a locking device is utilized and the server, not the patron, maintains the key to the locking device, such that the patron may not pour his /her own drinks. The ordering of bottle service shall not be a condition of entering the restaurant establishment. Bottle service for purposes of this condition is the service of a full bottle of distilled spirits as opposed to individual prepared drinks. 27. The operator of the restaurant facility shall be responsible for the control of noise generated by the subject facility. Noise generated by live entertainment shall comply with any limitations contained in the Live Entertainment Permit. The noise generated by the proposed use shall comply with the provisions of Chapter 10.26 of the Newport Beach Municipal Code. 28. No alcoholic beverages may be consumed at any time on any property adjacent to the licensed premises under the control of the license. 29. "Happy hour" type of reduced price alcoholic beverage promotions are prohibited. 30. The monthly gross sales of alcoholic to food shall not exceed 50% alcoholic beverages to 50% food service during the same period. The licensee shall maintain records that reflect separately the monthly gross sales of food and the gross sales of alcoholic beverages of the licensed business. Records shall be kept no less frequently than on a monthly basis and shall be made available to the Planning Department on demand. 31. There shall be no on -site radio, television, video, film, internet or other electronic media broadcasts, including recordings for the broadcast at a later time, which include the service of alcoholic beverages, and /or commercial film permit in accordance with Chapter 5.46 of the Municipal Code without first obtaining an approved Special Event Permit as issued by the City of Newport Beach. 32. Sales, delivery and consumption of alcoholic beverages shall be restricted to and within the confines of the building of the premises and sales or delivery of alcoholic beverages through any pass- through window is prohibited. 33. 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. 34. Storage outside of the building in the front, side or at the rear of the building shall be prohibited, with the exception of the required trash container enclosure. 35. The applicant shall ensure that the trash dumpsters and /or receptacles are maintained to control odors, which may include the provision of fully self - contained dumpsters or may include periodic steam cleaning of the dumpsters, if deemed necessary by the Planning Department. Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14 of the Newport Beach Municipal Code, including all future amendments (including Water Quality related requirements). 36. A covered wash -out area for refuse containers and kitchen equipment with minimum useable area dimensions of 36- inches wide, 36- inches deep and 72- inches high, shall be provided and the area shall drain directly into the sewer system, unless otherwise approved in writing by the Building Director and Public Works Director in conjunction with the approval of an alternative drainage plan. 37. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10:00 p.m. and 8:00 a.m., daily, unless otherwise approved by the Planning Director, and may require an amendment to this use permit. 38. All trash shall be stored within the building or within dumpsters stored in the trash enclosure (three walls and a gate), or otherwise screened from view of neighboring properties except when placed for pick -up by refuse collection agencies. The trash dumpsters shall have a top which shall remain closed at all times, except when being loaded or while being collected by the refuse collection agency. 39. The applicant shall submit a comprehensive security plan for the permitted uses for review and approval by the Newport Beach Police Department within 30 days of approval of this Use Permit, or prior to opening the business, which ever comes first. The procedures included in the plan and any recommendations made by the Police Department shall be implemented and adhered to for the life of the Use Permit. 40. By signing this Use Permit, the permittee acknowledges all of the conditions imposed and accepts this permit subject to those conditions and with the full awareness of the provisions of Chapter 20.82 (Eating and Drinking Establishments) and Chapter 20.89 (Alcohol Beverage Outlets) of the Newport Beach Municipal Code. 41. Valet service shall be permitted if the applicant obtains all appropriate approvals from the adjoining restaurant operators and permits from the City of Newport Beach. 42. Full menu lunch service shall be provided daily. 43. All deliveries shall be made on -site. 44. The outdoor smoking patio shall have and maintain an exit gate with panic hardware. N 45. The west exit door shall swing outward and have panic hardware. 46. The owner and operator shall comply with all terms of the settlement agreement attached hereto. ACKNOWLEDGE OF USE PERMIT CONDITIONS 10 STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH I I, LaVonne M. Harkless, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing resolution, being Resolution No. 2008 -64 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 24th day of June 2008, and that the same was so passed and adopted by the following vote, to wit: Ayes: Henn, Rosansky, Daigle, Webh, Curry, Gardner, Mayor Selich Noes: None Absent: None Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 25th day of June 2008. (Seal) j! ( f/ /iii r J City "Clerk Newport Beach, California