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HomeMy WebLinkAbout09 - Accessory Outdoor Dining Permit 333 Bayside DrCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 9 August 14, 2007 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Rosalinh Ung, Associate Planner (949) 644 -3208 rung @city.newport- beach.ca.us SUBJECT: Accessory Outdoor Dining Permit No. 2007 -001 333 Bayside Drive (PA2007 -004) APPLICANT: Jeff Reuter for 333 Bayside, LLC APPELLANT Don McCalla On June 21, 2007, the Planning Commission considered and approved an Accessory Outdoor Dining Permit to allow 3- Thirty -3 to construct and operate a 636 square -foot outdoor dining area in conjunction with the existing full- service restaurant. On June 28, 2007, Don McCalla, a resident from 105 Linda Isle, filed an appeal of the Planning Commission's decision to approve the project. On August 1, 2007, Mr. McCalla withdrew the appeal on the basis that he and the residents at 104 and 106 Linda Isle have collectively reviewed and agreed that there are adequate conditions on the construction and operation of the outdoor dining area. The appeal of the Planning Commission's decision, therefore, is no longer necessary (Attachment A). RECOMMENDATION Staff recommends that the City Council take no action on the appeal. Prepared by: Submitted by: R salinh M. Ung, ss ciate Planner Dav c Lepo, Pla g Director Attachment: A. Appeal Withdrawal Letter -- LETTER LAW OFFICE OF FRANK W. BATTAILE 110 Newport Center Drive, Suite 200 Newport Beach, California 92660 (949)719.1120 Fax(949)719 -1326 Email: bhlaw@earthlink.net RECEIVED BY PLANNING DEPARTMENT August 1, 2007 Ms. Rosalinh Ung AUG 012007 3300 Newport N BBeach CITY OF NEWPORT BEACH 3300 Blvd. Newport Beach, CA 92658 -8915 Re.: WTfHDRAWL OF APPEAL OF DECISION OF THE PLANNING COMMISSION APPLICATION NO.: PA 2007 -004 (3- Thirty -3 Waterfront) Dear Ms. Ung: I am writing to formally withdraw the appeal of Mr. Don McCalla of the referenced decision of the Planning Commission. Mr. McCalla had previously reviewed a draft of the final conditions of approval together with minutes of the.Planning Commission at which the application was conditionally approved. His appeal was based on his understanding of those documents. Having reviewed the final conditions of approval Mr. McCalla has decided to withdraw his appeal. Mr. McCatla's decision is based on his understanding that the final conditions of approval will be strictly enforced and that the applicant's strict compliance with each and every condition of approval will be subject to ongoing and periodic review by City officials. In particular, it is Mr. McCalla's understanding that the final conditions of approval strictly limit the use of the outside dining area to dining only and no other purpose whatsoever. The outside dining area will not be used as a smoking area or an area for "mixers" or for any other purpose. The number of customers allowed on the outside dining area will be strictly limited to the number of persons approved for dining. There will be no standing bar patrons or smokers. The hours of operation of the outside dining area will strictly enforced and the door to the outside dining area will be locked and the outside dining area will remain unoccupied and unused for any purpose outside of the specified hours of operation. Based on that understanding of the final conditions, Mr. McCalla withdraws his appeal. The applicant should be aware that by withdrawing the appeal Mr. McCalls does not waive any of his legal rights to pursue strict compliance with the use permit and with all applicable laws and regulations. Based on the applicant's statement to the Planning Commission that he will do nothing to control the noise generated by his drunken bar patrons at closing time, we have every expectation that further legal action maybe necessary. Mr. McCalla will pursue compliance with the use permit and all applicable laws by administrative actions through the Page 2 of 2 City's Planning Department and Code Enforcement Department and, if necessary, through civil suits against the bar operator, the owner of the land and individual bar patrons. Mr. McCalla and I want to thank you and Mr. I.epo and all of the Planning Department staff for their considerable efforts in addressing our concerns. We recognize that City staff has a heavy workload. Your attention to this matter is genuinely appreciated. Please let me know if you have any questions or if you require anything further of me. NOTICE OF PUBLIC HEARING 3 Thirty 3 Waterfront Accessory Outdoor Dining Permit No. 2007 -001 (PA2007 -004) NOTICE IS HEREBY GIVEN that the City Council of the City of Newport Beach will hold a public hearing on an appeal of the Planning Commission's approval of an Accessory Outdoor Dining Permit by Don McCalla on property located at 333 Bayside Drive. The property is located in the RSC (Retail and Service Commercial) District. Don McCalla has appealed the Planning Commission approval of Accessory Outdoor Dining Permit No. 2007 -001 for the construction and operation of a 636 square foot outdoor dining area in conjunction with the existing full- service restaurant. This project has been determined that it is categorically exempt under the requirements of the California Environmental Quality Act under Class 1 (Existing Facilities). NOTICE IS HEREBY FURTHER GIVEN that said public hearing will be held on August 14, 2007, at the hour of 7:00 p.m. in the Council Chambers of the Newport Beach City Hall, 3300 Newport Boulevard, Newport Beach, California, at which time and place any and all persons interested may appear and be heard thereon. If you challenge this project in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice or in written correspondence delivered to the City at, or prior to, the public hearing. For information call (949) 644 -3200. NOTE: The expense of this notice is paid from a filing fee collected from the appellant LaVonne M. Harkless, City Clerk City of Newport Beach MM AT Two &A'fMr- I- M o'I E hi* V *lLJ WM1, D TID ?10 -- Pl to SITC wt(4 � A l�f1�tT i� rI Jri11 12� �1 141M 0TZ— I -Z .4� NOTICE OF PUBLIC HEARING 3 Thirty 3 Waterfront Accessory Outdoor Dining Permit No. 2007 -001 (PA2007 -004) NOTICE IS HEREBY GIVEN that the City Council of the City of Newport Beach will hold a public hearing on an appeal of the Planning Commission's approval of an Accessory Outdoor Dining Permit by Don McCalla on property located at 333 Bayside Drive. The property is located in the RSC (Retail and Service Commercial) District. Don McCalla has appealed the Planning Commission approval of Accessory Outdoor Dining Permit No. 2007 -001 for the construction and operation of a 636 square foot outdoor dining area in conjunction with the existing full - service restaurant. This project has been determined that it is categorically exempt under the requirements of the California Environmental Quality Act under Class 1 (Existing Facilities). NOTICE IS HEREBY FURTHER GIVEN that said public hearing will be held on August 14, 2007, at the hour of 7:00 p.m. in the Council Chambers of the Newport Beach City Hall, 3300 Newport Boulevard, Newport Beach, California, at which time and place any and all persons interested may appear and be heard thereon. If you challenge this project in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice or in written correspondence delivered to the City at, or prior to, the public hearing. For information call (949) 644 -3200. NOTE: The expense of this notice is paid from a filing fee collected from the appellant LaVonne M. Harkless, City Clerk City of Newport Beach 050 411 01 050 411 02 050 411 03 NEWPORT COAST DEVELOPMENT PACIFIC BAYSIDE PLAZA LLC Beach Cars Newport 301 E Coast Hwy 2025 W Balboa Blvd 110 SE 6th St 926TH Newport Beach CA 92660 Newport Beach CA 92663 Fort Lauderdale FL 33301 050 451 07 333 BAYSIDE LLC 1041 W 18th St #A101 Costa Mesa CA 92627 050 451 27 David Tran 103 Linda Isle Newport Beach CA 92660 050 451 31 LLOYDS MATERIAL SUPPLY CO IN PO Box 520 Upland CA 91785 050 451 56 Russell Fluter 251 E Coast Hwy Newport Beach CA 92660 050 451 6 IRVI 550 Newp enter Or Newport B ach CA 92660 050 471 6 IRVIN 550 Newport nter Dr Newport Bead CA 92660 Bayside Village HOA 050 451 08 341 BAYSIDE DRIVE INC 7000 Big Canyon Rd Washoe Valley NV 89704 050 451 28 Alvin Dubrow 104 LINDA ISLE. NEWPORT .BEACH CA 92660 050 451 54 Donald McCalla 105 Linda Isle Newport Beach CA 92660 050 51 7 IR IN O 550 Ne p Center Dr Newport each CA 92660 050 471 01 LINDA ISLE COMMUNITY 1234 E Normandy PI Santa Ana CA 92705 440 13260 Mangione 127 Liberty Newport Beach CA 92660 333 Bayside LLC Owner Attn: Jerrel Barto 2900 Orange Avenue Long Beach, CA 90806 Applicant: Bayside Village Management 300 East Coast Highway Newport Beach, CA 92660 050 451 26 Joan Randolph PO BOX 9888 Newport Beach CA 92658 050 451 30 Hansel & Leann Benvenuti Jr. 106 Linda Isle Newport Beach CA 92660 050 451 55 IRVINE CO 550 Newport Center Dr Newport Beach CA 92660 050 451 59 Russell Fluter 2025 W Balboa Blvd Newport Beach CA 92663 050 471 02 ASSN Marjorie Austin 401 Bayside Dr Newport Beach CA 92660 440 13262 BAYSIDE MHP LLC 300 E Coast Hwy Newport Beach CA 92660 3 Thirty Waterfront Linda Isle Community Assn. Attn: Jeff Reuter Keystone Pacific 333 Bayside Drive 16845 Von Karman #200 Newport Beach, CA 92660 Irvine, CA 92606 PA2007 -004 for OD2007 -001 333 BAYSIDE DRIVE DATE OF MEETING - P. CITY OF NEWPORT BEACH N TO APPEAL Application No. PA 2007 -004 (3- Thirty -3 Waterfront) 21717 JUN 28 fill In: Li 5 Name of Appellant - _ or person filing: DON McCALLA Phone: 949 - 673 -2112; E -mail: sgmccalla @hotrt' a*Tcom Ci; r' Address: 105 LINDA ISLE, NEWPORT BEACH, CA 92660 Date of Planning Commission decision: June 21, 2007 Regarding application of: JEFF REUTER (Description of application filed with Planning Commission) ACCESSORY OUTDOOR DINING PERMIT NO. 2007 -001 Reasons for Appeal : PLEASE SEE ATTACHED for Date / a� e f-,Ap" C Y CLERK FOR OFFICE USE ONLY Date Appeal fled and Administrative Fee received: � _e -'200--/. Hearing Date. An appeal shall be scheduled for a hearing before the City Council within sixty (60) days of the filing of the appeal unless both applicant and appellant or reviewing body consent to a later date (NBMC Sec. 20.95.060) cc: Appellant Planning (fumish one set of mailing labels for mailing) File APPEALS: Municipal Code Sec. 20.95.050(B) Appeal Fee: $340 pursuant to Resolution No. 2006 -4 adopted on 1- 10 -06. (Deposit funds with Cashier in Account #2700 -5000) CITY OF NEWPORT BEACH APPLICATION TO APPEAL DECISION OF THE PLANNING COMMISSION APPLICATION NO.: PA 2007 -004 (3- Thirty -3 Waterfront) ATTACHMENT TO APPEAL OF DON McCALLA REASONS FOR APPEAL: The Applicant failed to make the required showing that the proposed additional use will not, under the circumstances of the particular case, be detrimental to the health, safety, peace, comfort and general welfare of persons residing in the neighborhood or injurious to property or improvements in the area. The proposed outdoor dining will create unacceptable noise associated with an increase over the existing and already unacceptable noise level of the bar /restaurant patrons screaming and shouting in outdoor areas adjacent to the bar /restaurant up to and including closing time at 2:OO AM. The Applicant is in violation of the express terms of his current use permit due to unacceptable noise disturbances impacting neighboring residences. Because he is in violation of his current use permit he is prohibited from obtaining a permit for more intense use. In fact, the City should be considering revoking or restricting the current use permit. The Applicant is in violation of his current use permit because he is in violation of multiple provisions of the Municipal Code including, without limitation, sections 10.26.025, 1016.075, 10.28.007, 10.28.010 and 10.50.020. In addition, the Applicant's current operation of his bar /restaurant violates the policy set forth in Municipal Code sections 10.26.005 and 10.28.005. By intensifying his use of the property, the Applicant's violations of these laws would be even more egregious. 4. The Applicant has failed to demonstrate that he will be in compliance with mandatory interior noise levels prescribed by the City's General Plan (Noise Element, Table N3) and the City's noise ordinance (Municipal Code section 10.26.030). The Applicant has failed to demonstrate that he will be in compliance with all of the mandatory exterior noise levels (particularly with regard to maximum instantaneous noise level) prescribed by the City's General Plan (Noise Element, Table N3) and the City's Noise Ordinance (Municipal Code section 10.26.025). 5. The Applicant's current operation violates General Plan Policies including, without limitation, Policies N1.1, N1.3, N1.7 and N1.8. The pending application, if approved, would sanction the ongoing violation of those policies and would worsen the Applicant's violations of those policies. 6. Approval of the pending application, or a failure by the City to enforce the Municipal Code and the General Plan policies with respect to the Applicant's present use of the property by revoking or amending the current use permit, would violate Municipal Code section 20.96.010. The Applicant has failed to apply for a required coastal development permit. \n. �`�WPORr CI'T'Y OF NEWPORT BEACH O ' ADMINISTRATIVE SERVICES U S 3300 NEWPORT BLVD.. cq� oRa�r P.O. BOX 1768, NEWPORT BEACH, CA 92658 -8915 RECEIVED BY: PERRY2 TODAY'S DATE: 06/28/07 27005000 ZONING & SUBDIVISION F CASH PAID CHECK PAID $.00 $340.00 RECEIPT NUMBER: 02000124813 PAYOR: MCCALLA, DONALD D REGISTER DATE: 06/28/07 TIME: 10 :55:24 $340.00 TOTAL DUE: $340.00 CHECK NO TENDERED CHANGE 7085 U .,Fp $- 340.00 $.00 i.n4P: &J:< - so-u9. 7085 ' DONALD D McCALLA„ 04448944 165 LINDA ISLE PH.'99.6732.112� NEWPORT -B&CH, CA 92660 DATE 1 PAY TO THEE -q � �` �f) @ ORDER OFI / /S'e `✓qo, M_ Fumes s hfarehanm Bank'. 11LC3JA. - �-c.aaauoa:oma. ila�sd:leea _ �o ' iMtl GaMev4vn@rvbvetl .� y.w ., _ GeNm6oae:G91901 _ / rnvmle�am�T /ehBmYm 11 16tb18 p s^.. o' MEMO.GA��- -1. i 2 2-2 R ralli 117 �— Attorney at Law 110 New Nel, iP[;e1 Center prise Suite ` - -� ach,.<;zliFir 200 nnia 926riQ Tel 949- 719.1720 Fax 949 - 119.1.426 AFFIDAVIT OF P ®STING On V U1 2007, I posted the Notice of Public Hearing regarding: 3 Thirty 3 Waterfront Accessory Outdoor Dining Permit No. 2007 -001 (PA2007 -004) Date of Hearing: August 14, 2007 Authorized to Publish Advertisements of all kinds including public notices by Decree of the Superior Court of Orange County, California. Number A -6214, September 29; 196 [,and A- 2483.1 June 11, 1963. PROOF OF PUBLICATION STATE OF CALIFORNIA) ) ss. COUNTY OF ORANGE ) I am a Citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a par<y to or interested in the below entitled matter. I am a principal clerk of the NEWPORT BEACH - COSTA MESA DAILY PILOT, a newspaper of general circulation, printed and published in the City of Costa Mesa, County of Orange, State of California, and that attached Notice is a true and complete copy as was printed and published on the following dates: JULY 28,2007 I declare, under penalty of perjury, that the foregoing is true and correct. Executed on JULY 28,2007 at Costa Mesa, California. Signature R!EE E D 2E17 o1iLl -G M I I I c. C (.1, ''