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HomeMy WebLinkAbout2009-83 - Port Restaurant and BarRESOLUTION NO. 2009 -83 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING AN AMENDMENT TO USE PERMIT NO. 1566 AND OFFSITE PARKING AGREEMENT NO. OP2009 -003 FOR THE PORT RESTAURANT AND BAR LOCATED AT 440 HELIOTROPE AVENUE (PA2009 -080) THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. An application was filed by Ali H. Zadeh, applicant and appellant, with respect to property located at 440 Heliotrope Avenue, and legally described as Parcel 1 of Parcel Map 57 -20 (Resubdivision No. 412) requesting approval of an amendment to Use Permit No. 1566 and Off -Site Parking Agreement No. OF 2009 -003. 2. The appellant proposed the following changes in the operational characteristics of the existing restaurant: 1) Expand the existing hours of operation (5:30 p.m. to 12:00 a.m.) by extending the closing time to 1:00 a.m. seven days a week, and provide lunch service on weekends; and 2) Introduction of live entertainment. The application also includes an off -site parking agreement to allow the continued use of 40 off -site parking spaces on property located at 2865 East Coast Highway for the requested hours of operation. 3. The subject property is located within the Retail and Service Commercial (RSC) Zoning District and the General Plan Land Use Element designation is Corridor Commercial (CC). 4. The subject property is located within the coastal zone. The Coastal Land Use Plan designation is General Commercial (CG -B). 5. Public hearings were held by the Planning Commission on August 20, 2009 and September 17, 2009, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meetings was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at these meetings. 6. At the September 17, 2009, Planning Commission hearing, the Planning Commission unanimously voted to disapprove the amendment to Use Permit No. 1566 and Off -Site Parking Agreement No. OP2009. 7. On September 30, 2009, the applicant appealed the decision of the Planning Commission to the City Council. 8. The appellant has modified his request as to limit the extension of the closing hours to three days of week (Thursday through Saturday), as opposed to daily as originally requested. Pursuant to Section 20.95.060(C) the City Council may only consider the modified request if they deem it relevant. 9. A public hearing was held by the City Council on November 10, 2009, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the City Council at this meeting. 10. At the November 10, 2009, City Council hearing, the City Council overturned the decision of the Planning Commission and unanimously voted to approve the modified amendment request to Use Permit No. 1566 and Off -Site Parking Agreement No. OP2009, subject to certain conditions of approval limiting the hours of operation to 12:00 midnight, seven days a week, and limiting the operation and type of live entertainment. The City Council continued the item to the next scheduled meeting, and directed staff to prepare a resolution of approval, with findings and conditions. 11. A public hearing was held by the City Council on November 24, 2009, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. Evidence, both written and oral, was presented to, and considered by, the City Council at this meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This project has been reviewed, and it has been determined that it is categorically exempt under the requirements of the California Environmental Quality Act (CEQA) under Class 1 (Existing Facilities). 2. The project involves minor interior alterations involving a negligible expansion of use. SECTION 3. REQUIRED FINDINGS. 1. Pursuant to Section 20.82.060 of the Zoning Code, the proposed expansion in hours of operation and introduction of live entertainment are considered major changes in operational characteristics requiring an amendment to the Use Permit. In accordance with Section 20.91.035 of the Newport Beach Municipal Code, the following findings and facts in support of such findings are set forth: Finding: A. 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: A -1, The site is located in the Retail and Service Commercial (RSC) District. This district is intended to provide areas which are predominantly retail in character, but also allows service and office uses. Easting and drinking establishments are considered service commercial uses that serve both permanent residents and visitors of the area. The existing restaurant is consistent with the RSC District. Finding: B. 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: B -1. The live entertainment use within the existing restaurant, pursuant to the conditions of approval regulating operation and maintenance of the use, is consistent with the Corridor Commercial (CC) land use designation of the General Plan. This designation allows a range of neighborhood - serving retail and service uses along the street frontages that are located and designed to foster pedestrian activity. B -2. JEC, an electrical contractor specializing in audio engineering, prepared a noise study to determine whether live entertainment can be provided within the restaurant in compliance with the City's Community Noise Control Ordinance. The JEC noise study concludes that noise levels observed for both the live band and recorded DJ music did not exceed the allowable exterior noise levels for the adjacent residential uses. Newport Beach Police Detectives were on -site during the sound tests to observe the testing and to conduct additional sound measurements. The Detectives used a handheld sound level meter to take several measurements in and around the business area. Their measurements were similar to those of the JEC tests and found that the sound measurements did not exceed the maximum allowable exterior noise levels of the City's Community Noise Control Ordinance. B -3. Noise impacts and disturbances do affect the neighboring residential units, and without proper controls can prove detrimental to the surrounding community. By establishing proper controls and conditions, potential noise impacts will be minimized. In addition to complying with all applicable Municipal Code sections pertaining to the control of noise, a number of conditions contained in Exhibit "A" have been adopted to control potential noise - related problems. Finding: C. 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: C -1. The existing restaurant is consistent with the legislative intent of Chapter 20.15 (Commercial Districts) of the Zoning Code. Section 20.15.020 requires approval of a use permit for restaurants in the RSC District. The current restaurant operates pursuant to Use Permit No. 1566. C -2. The proposed live entertainment is considered an ancillary use to the existing restaurant. The Zoning Code does not require any specific conditions pertaining to the operation of live entertainment. 2. Pursuant to Section 20.66.080 of the Zoning Code, off - street parking on a separate lot from the project site requires the approval of an off -site parking agreement. In accordance with Section 20.91.035 of the Newport Beach Municipal Code, the following findings and facts in support of such findings are set forth: Finding: A. Such lot is so located as to be useful in connection with the proposed use or uses on the site or sites. Facts in Support of Finding: A -1. The subject off -site parking lot is located at 2865 East Coast Highway, directly across the street from the subject restaurant facility. A -2. The 40 parking spaces in the off -site parking lot satisfy the parking requirement of 39 parking spaces. A -3. The off -site parking lot is located within walking distance (approximately 50 feet) of the subject facility. Finding: B. Parking on such lot will not create undue traffic hazards in the surrounding area. Facts in Support of Finding: B -1. Since at least 2003, the restaurant has used the subject off -site parking lot to satisfy its parking demand and this has not created an undue traffic hazard in the surrounding area to date. B -2. Heliotrope Avenue is not a heavily - traveled street and vehicular traffic is not anticipated to create a hazard for patrons crossing the street. B -3. Accessibility and path of travel from the parking lot to the restaurant were previously reviewed and approved by the City in conjunction with the most recent tenant improvement plans for Svelte (prior name of restaurant) in 2003. Finding: C. Parking is permanently available, marked, and maintained for the use it is intended to serve. Facts in Support of Finding: C -1. The applicant has submitted a three -year lease for the use of 40 parking spaces, which expires on September 1, 2011, after which time tenancy is month -to- month. C -2. The lease authorizes the applicant use of the off -site parking lot between the hours of 5:30 p.m. and 2:00 a.m., Monday through Friday, and between 10:00 a.m. and 2:00 a.m., Saturday and Sunday. C -3. A majority of the 20,300- square -foot commercial building at 2865 East Coast Highway is currently vacant. Current tenants are classified as general office uses. According to the property manager of the building, the office uses within the building maintain business hours of between 8:00 a.m. to 5:00 p.m., Monday through Friday. Given the nature and design of the building, general office type uses will continue to be the predominate use of the building and parking will remain available for use by the proposed restaurant in the evening hours and on weekends. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The City Council of the City of Newport Beach hereby approves the amendment to Use Permit No. 1566 and Off -Site Parking Agreement No. OP2009 -003, subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. 2. This resolution shall take effect immediately upon adoption. 3. The conditions of approval supersede the conditions of approval included in the resolution of the Planning Commission on March 17, 1977, approving Use Permit No. 1566 which, upon vesting of the rights authorized by this amendment to Use Permit No. 1566 and Off -Site Parking Agreement No. OP2009 -003, shall become null and void. 4. The City Council of the City of Newport Beach hereby directs the City Clerk to mail notice of this decision to the applicant and appellant within five working days of the date of this decision. Passed and adopted by the City Council of New^ rt each at a r ular meeting held on the November 24, 2009: iT/_1 ATTEST: 0�& X•V11/ CITY CLERK EXHIBIT "A" CONDITIONS OF APPROVAL (Project - specific conditions are in italics) Project Specific Conditions The development shall be in substantial conformance with the approved site plan and floor plans stamped and dated with the date of this approval. (Except as modified by applicable conditions of approval.) 2. The amendment to Use Permit No. 1566 and Off -Site Parking Agreement No. OP2009- 003 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. 3. No portion of the proposed entry door located at the street right -of -way shall open into the public right -of -way. The Building Department shall also review and approve the door placement prior to installation. 4. All applicable conditions of approval of Accessory Outdoor Dining Permit No. OD2003- 002 shall apply and remain in force. 5. Hours of operation shall be limited to between 5:30 p.m. and 12:00 midnight, Monday through Friday, and between 11:00 a.m. to 12:00 midnight, on Saturday and Sunday. 6. This approval is only for the establishment of a Full - Service, Low Turnover eating and drinking establishment as defined by idle 20 of the Municipal Code, with the principal purpose being the sale or serving of food and beverages with sale and serving of alcoholic beverages incidental to the food use. 7. A total of 39 parking spaces shall be maintained at the off -site parking lot located at 2865 East Coast Highway. 8. The final off -site parking agreement between the City and the applicant shall be prepared by the applicant's legal counsel for approval by the City Attorney if deemed consistent with the intent of this condition. The final off -site parking agreement shall be recorded on both properties (440 Heliotrope Avenue and 2865 East Coast Highway). The applicant shall provide proof of recordation of the off -site parking agreement, subject to the Planning Director's approval. 9. The applicant shall require all employees to park within the approved offsite parking lot location. 10. Storage of any kind shall be prohibited on the off -site parking lot. 11. The Planning Director shall be notified immediately should any changes in the Parking Lease between the applicant and the owner of the off -site parking lot be proposed. 12.A sign, to be approved by the Planning Director, shall be posted on the front of the premises indicating the location of the off -site parking lot. 13. The off -site parking lot shall be maintained free of litter. The operator shall provide for daily removal of trash, litter, and debris from the off -site parking lot and all abutting sidewalks within 20 feet. 14. In the event the required 39 off -site parking spaces are no longer available for the use of the restaurant, and alternative off -site parking acceptable to the Planning Director is not provided, the net public area of the restaurant shall be reduced so as not to exceed the net public area that existed on the site prior to the March 17, 1977, amendment to this Use Permit. 15. A Live Entertainment Permit issued by the Revenue Division, in accordance with procedures set forth in Chapter 5 of the Municipal Code, shall be required to allow live entertainment as incidental and accessory to the primary use of the facility as a restaurant. 16. Dancing shall not be permitted at any time. 17. Live entertainment provided for restaurant patrons shall remain an ancillary use intended to enhance the dining experience within the restaurant. Providing a dance floor or reconfiguring the tables and chairs to provide a dance /assembly area shall not be permitted. 18. The live entertainment use shall be permitted within the interior dining rooms only. Such activities shall be prohibited within the outdoor atrium. 19. Live entertainment shall be permitted between the hours of 5:30 and 11:00 p.m., seven days a week. 20. Live entertainment shall be limited to no more than two performers at any time, including a vocalist. Disc jockeys or similar forms of entertainment shall not be allowed. 21. Permissible musical instruments shall be limited to piano, woodwinds and string instruments, and other instruments that the Planning Director determines to have no greater noise impact. Percussion and brass instruments are prohibited. Amplification is allowed for the purpose of projecting recorded or live music through the interior of the restaurant. No outdoor speakers shall be permitted in conjunction with the proposed operation. 22. All exterior doors and windows of the facility shall be opened only as necessary to allow ingress and egress. The doors and windows of the outdoor atrium are permitted to remain open. 23. Sound levels within the interior restaurant shall be no greater than that specified in Chapter 10.26 of the Newport Beach Municipal Code. To determine the maximum permissible interior sound levels and to develop a set of measuresAmprovements necessary to ensure compliance, the City shall retain (at the applicant's expense) the services of a qualified engineer specializing in noise /acoustics to monitor the sound generated by the restaurant facility when live entertainment is provided. The monitoring shall occur within 2 weeks of initially providing live entertainment. Any measures or improvements recommended by the engineer to ensure compliance shall be completed within 30 days of monitoring, unless an extension is granted by the Planning Director. 24. The applicant shall provide security personnel at the off -site parking lot in the evenings between 10:00 p.m. and 15 minutes after closing, in sufficient number, to advise and assist patrons entering and leaving the area in a quiet manner, and to prevent loitering by restaurant patrons after the close of business. 25. The applicant shall pay any unpaid administrative costs associated with the processing of this application to the Planning Department. 26. To the fullest extent permitted by law, applicant 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 this project including, but not limited to, the approval of the amendment to Use Permit No. 1566 and Off -Site Parking Agreement No. OP2009 -003; and /or the City's related California Environmental Quality Act determinations. 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, City, and /or the parties initiating or bringing such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. Standard City Conditions 27.The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 28. The applicant 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 Use Permit. 29. The applicant is required to obtain all applicable permits from the City Building and Fire Departments. The construction plans must comply with the most recent, City- adopted version of the California Building Code. The construction plans must meet all applicable State Disabilities Access requirements. Approval from the Orange County Health Department is required prior to the issuance of a building permit. 30.Grease interceptors shall be installed, if not already provided, on all fixtures in the restaurant where grease may be introduced into the drainage systems in accordance with the provisions of the Uniform Plumbing Code, unless otherwise approved by the Building Department. 31.All exits shall remain free of obstructions and available for ingress and egress at all times. 32. Strict adherence to maximum occupancy limits is required. 33. 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. 34.This Use Permit 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. 35.Any change in operational characteristics, hours of operation, expansion in area, or other modification to the approved plans, shall require an amendment to this Use Permit or the processing of a new Use Permit. 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.The use of private (enclosed) "VIP" rooms or any other temporary or permanent enclosures separate from public areas are prohibited. 38.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. 39.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. 40. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee. 41. No "happy hour" type of reduced price alcoholic beverage promotion shall be allowed except when served in conjunction with food ordered from the full service menu. 42. 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. 43. 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 Department on demand. 44. The use permit approval does not permit the premises to operate as a bar, tavern, cocktail lounge or nightclub as defined by the Municipal Code, unless the Planning Commission first approves a use permit. 45.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, include any form of on -site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. 46. A full service menu must be available until one -half hour before closing time. 47.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 Planning Director, the illumination creates an unacceptable negative impact on surrounding land uses or environmental resources. The Planning Director may order the dimming of light sources or other remediation upon finding that the site is excessively illuminated. 48.AII mechanical equipment shall be screened from view of adjacent properties and adjacent public streets within the limits authorized by this permit, and shall be sound attenuated in accordance with Chapter 10.26 of the Newport Beach Municipal Code, Community Noise Control. 49. The operator of the facility shall be responsible for the control of noise generated by the subject facility including, but not limited to, noise generated by patrons, food service operations, and mechanical equipment. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. 50. No outside paging system shall be utilized in conjunction with this establishment. 51.All trash shall be stored within the building or within dumpsters stored in the trash enclosure (three walls and a self - latching gate) or otherwise screened from view of neighboring properties, except when placed for pick -up by refuse collection agencies. 52.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. 53. The applicant 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 Planning Department. 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). 54. Water should not be used to clean paved surfaces such as sidewalks, driveways, parking areas, etc. except to alleviate immediate safety or sanitation hazards. 55.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 by the Building Director and Public Works Director in conjunction with the approval of an alternate drainage plan. 56. 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. 57. 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. 58. 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. STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, Leilani I. Brown, 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. 2009 -83 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 November, 2009, and that the same was so passed and adopted by the following vote, to wit: Ayes: Henn, Rosansky, Curry, Webb, Gardner, Daigle, 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 November, 2009. O r City Clerk Newport Beach, California (Seal)