HomeMy WebLinkAbout24 - Newport Beach Brewing Company - Use Permit 3485CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item 24
May 13, 2008
TO: Honorable Mayor and Members of the City Council
FROM: Planning Department
James Campbell, Senior Planner
(949) 644 -3210 iampbell (a)-city.newport- beach:ca.us
SUBJECT: Newport Beach Brewing Company
Use Permit No. 3485
2920 Newport Boulevard (PA2006 -177)
RECOMMENDATION
1. Hold a public hearing
2. Adopt the attached draft resolution amending Resolution No. 2008 -57 by amending
Condition No. 6 and adding Condition No. 28 to Use Permit 3485 (Attachment #1).
INTRODUCTION
On August 14, 2007, City Council adopted Resolution No. 2007 -57 amending the conditions
of approval of Use Permit No. 3485 (Attachment #2). The Newport Beach Brewing Company
filed suit contending that the action was inappropriate. City Council and the Brewing
Company entered into a settlement agreement earlier this month, which includes a stipulation
that the City Council consider at a public hearing an amendment to Condition No. 6 and a
new condition related to special events permits.
In the August 2007 action to amend the conditions of approval, Condition No. 6 was changed
to read as follows:
"6. The net public area of the restaurant1brewpub, which is devoted to daytime
use prior to 5:00 p.m. shall be limited to 1,500 square feet daily. The balance
of the net public area shall be physically closed off to the public by a fixed
barrier and shall not be used until after 5:00 p.m. daily."
Newport Beach Brewing Company
May 13, 2008
Page 2 of 3
Pursuant to the Settlement Agreement, Condition #6 should be changed as follows:
6. The net public area of the restauranUbrewpub, which is devoted to daytime
use prior to 5:00 p.m. shall be limited to 9,500 square feet daily Monday
through Friday. This restriction specifically excludes Saturday and Sunday
when parking spaces devoted to office uses are not necessary. The balance
of the net public area shall be physically closed off to the public by a fixed
barrier and shall not be used until after 5:00 p.m. daily Mondav through Friday
(the Weekday Closure Area "). Distilled spirits shall not be served within the
Weekday Closure Area on Saturday and Sunday before 5:00 p.m.
From a parking perspective, the change to the condition should not prove to be an issue
with the offices on the second floor of the building closed on weekends. The limitation on
the service of distilled spirits on Saturday and Sunday within the portion of the brewery that
is closed before 5:00 p.m. during the week is a new limitation acceptable to the Brewing
Company.
Pursuant to the .Settlement Agreement, City Council agreed to consider the following
additional condition:
"28. Newport Beach Brewing Company may apply for at least three special event
days per calendar year. City shall not be obligated to approve such special
events permits, but if the City does approve a special event permit, the approval
of the special event permit(s) shall not require the approval of an amendment to
this permit."
This condition acknowledges that the Newport Beach Brewing Company may request a
special event permit and is in conformance with the Municipal Code.
Environmental Determination:
The modification and addition to the conditions of approval as described above are exempt
from the provisions of the California Environmental Quality Act (CEQA) pursuant to Section
15301 (Existing Facilities) of the Guidelines for the Implementation of CEQA as it involves
operational alterations of an existing facility where no expansion of the use occurs. No
expansion of the use occurs with changes to the conditions as proposed.
Conclusion:
Staff believes that a finding can be made such that the modification of Condition No. 6 and
the addition of Condition No. 28 as described will not be detrimental to the public health,
safety and general welfare.
Alternatives:
The Council can decline the proposed changes to the conditions of approval and seek a
modified settlement agreement with the NBBC.
Newport Beach Brewing Company
May 13, 2008
Page 3of3
Public Notice:
A hearing notice indicating the subject, time, place. and location of this hearing was provided
in accordance with the Municipal Code. Notice was published in the Daily Pilot, mailed to
property owners within 300 feet of the property (excluding abutting roads) and the site was
posted a minimum of 10 days in advance of this hearing.
Prepared by:
ln.j Cpvw'oYr/(/�
James Campbell, Senior Planner
ATTACHMENT
Submitted by:
David Lepo, Pla g Director
1. Draft resolution amending Resolution No. 2007 -57 and Use Permit No. 3485
2. Resolution No. 2007 -57
3. Settlement Agreement
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH MODIFYING RESOLUTION NO.
2007 -57 TO AMEND CONDITION NO. 6 AND ADD
CONDITION NO. 28 TO USE PERMIT NO. 3485 FOR THE
NEWPORT BEACH BREWING COMPANY LOCATED AT
2920 NEWPORT BOULEVARD (PA 2006 -177).
WHEREAS, on August 14, 2007, after a duly noticed public hearing heir!"! :
10, 2007, City Council adopted Resolution No. 2007 -57 modifying as. +a adw; q',.
conditions of approval for Use Permit No. 3485.
WHEREAS, on May 13, 2008, City Council held a duly noticed pubiic;
consider amending Condition No. 6 and to add a new condition (Condition
provided for in a Settlement Agreement between the City and the Ne -,por
Brewing Company. The notice was published, mailed and posted a minimum
in advance of the hearing in accordance with the applicable regrrirerrer[�:
Municipal Code. Evidence both written and oral was presented to and cor5rc ,f >ci t; r, r
City Council.
WHEREAS, amending Condition No. 6 to allow use of the net public ar'e�,
5:00 p.m. on Saturday and Sunday will not create a significant parking confhcft
office uses located on the second floor of the building are typically closed Thy, r „13 r
Beach Brewing Company has also agreed to limit the service of distilled =_>
Saturday and Sunday within the portion of the restaurant/brewery that is Jo s&
5:00 p.m. during the week. Allowing these changes to the conditions of approva� ,;,;ii
be detrimental to the public health, safety and general welfare.
WHEREAS, adding Condition No. 28 acknowledges that the Newpr rs:
Brewing Company may apply for special event permits and that the City is und, ;
obligation to approve any applications. It also acknowledges that should the City ;ho; s:,: .
to approve a special event permit, the approval of the special event permits;
require the approval of an amendment to Use Permit No. 3485. This corsditir!
consistent with the Municipal Code.
WHEREAS, the modification and addition to the conditions of apprc v.:,: :.i^,
described above are exempt from the provisions of the California Environmentai Qir, ^;
Act (CEQA) pursuant to Section 15301 (Existing Facilities) of the Guidelines c
Implementation of CEOA as they involve operational alterations of an existing Far_:ill.'
where no expansion of the use occurs. No expansion of the use occurs with cha! r, »; h:,.
the conditions as proposed.
ATTACHMEH 7 --
NOW, THEREFORE, BE IT RESOLVED
Section 1. City Council Resolution No. 2007 -57 is hereby amended by amending
Condition No. 6 to read:
"6. The net public area of the restaurant/brewpub, which is devoted to daytime use
prior to 5:00 p.m. shall be limited to 1,500 square feet Monday through Friday.
This restriction specifically excludes Saturday and Sunday when parking
spaces devoted to office uses are not necessary. The balance of the net public
area shall be physically closed off to the public by a fixed barrier and shall not
be used until after 5:00 p.m. Monday through Friday (the "Weekday Closure
Area "). Distilled spirits shall not be served within the Weekday Closure Area on
Saturday and Sunday before 5:00 p.m."
Section 2. City Council. Resolution No. 2007 -57 is hereby amended by adding
Condition No. 28 to read:
"28. Newport Beach Brewing Company may apply for at least three special event
days per calendar year. City shall not be obligated to approve such special
events permits, but if the City does approve a special event permit, the approval
of the special event permit(s) shall not require the approval of an amendment to
this permit."
Section 3. This resolution shall take effect immediately upon adoption. Passed and
adopted by the City Council of Newport Beach at a regular meeting held on the May 13,
2008 by the following vote to wit:
AYES, COUNCIL MEMBERS
NOES, COUNCIL MEMBERS
ABSENT, COUNCIL MEMBERS
ATTEST:
CITY CLERK
T,F -RIN 7
5
RESOLUTION NO. 2007 -57
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT
BEACH MODIFYING THE CONDITIONS OF APPROVAL OF USE
PERMIT NO. 3485 FOR PROPERTY LOCATED AT 2920 NEWPORT
BOULEVARD (PA2006 -177).
WHEREAS, on September 27, 1993, the City approved Use Permit No. 3485
subject to findings. and conditions of approval authorizing a restaurant/brewpub with a
Type 23 Alcoholic Beverage Control (ABC) license to operate at 2920 Newport
Boulevard within the Cannery Village area subject to findings and twenty -nine (29)
conditions of approval. A Type 23 license allows a small beer manufacturer (brewpub or
micro - brewery) where a brewpub is typically a small brewery with a restaurant. The
restaurant and brewpub began operations in 1994 using the business.name of Newport
Beach Brewing Company. referred to hereto as "NBBC" after . the issuance of Coastal
Development Permit (CDP) No. 5- 93-137 issued by the California Coastal Commission
(CCC).
WHEREAS, the NBBC represented to the City that the primary use would be a
restaurant and that the brewery and alcohol sales would be secondary to the primary
use. This fact is supported by the administrative record from the hearings conducted by
the City.in 1993: Condition No. 10 was imposed requiring the operation of the brewery
and the service of alcoholic beverages to be, ancillary to the primary food service
operation of the restaurant.
WHEREAS, on September 27, 1993, the City Council rescinded its March 8,
1993 approval to allow the purchase and use of in -lieu parking spaces. within the
Cannery Village municipal parking lot prior to 5:00 PM in association with Use Permit
No. 3485.
WHEREAS, in 1999, the NBBC requested and received approval of an
amendment to Use Permit No. 3485. The amendment allowed the restaurant and
brewpub to operate with a Type 75 ABC license and the amendment was subject to
findings and additional and revised conditions of approval (twenty -nine [29] in total). A
Type 75 license authorizes the sale of beer, wine and distilled sprits at a bona fide
eating place plus the brewing. of beer.
WHEREAS, the NBBC represented to the City that the primary use would bee
restaurant and that the brewery and alcohol sales would compliment and be secondary
to the primary use. This fact is supported by the administrative record from the
proceedings conducted in 1999. Condition No. 9 was imposed requiring the operation of
the brewery and the service of alcoholic beverages to be ancillary to the primary food
service operation of the restaurant. Condition No. 10 was imposed that provides, 'The
approval of this use permft is for a restaurant1brewpub and shall not be construed as the
approval of a bar, cocktail lounge, or other use serving alcoholic beverages during
hours not corresponding to regular meal service hours (food products sold or served
incidentally to the sale or service of alcoholic beverages shall not be deemed as
4 Mf (114fe7i /r WZ, �
constituting regular meal service) nor as the approval of a cabaret, nightclub, or other
use with the principal purpose of providing live entertainment and/or dancing."
Additionally, the closing hour on Friday and Saturday nights was changed from 2:00 AM
to 1:00 AM.
WHEREAS, in January of 2006, the City received a complaint from The Cannery
Village Concerned, a local group of residents, property owners and business owners,
alleging-that the Newport Beach Brewing Company was violating the conditions of Use
Permit No. 3485. Alleged violations included, among other things: operating a bar rather
than a restaurant in violation of Condition No. 10; alcohol sales in excess of food sales
in violation of Condition No. 9; opening the entire dining area on weekends before 5PM
in violation of Coastal Development Permit No. 5 -93 -137, trash in the parking lot in
violation of Standard Condition E; failure of the establishment to curb unruly patron
behavior outside the establishment in violation of Standard Condition D; and inadequate
training of the owner and employees in responsible methods and skills for serving and
selling alcoholic beverages in accordance with Standard Condition F. Neighbors
contend that patrons create noise, fight, cause property damage, urinate, defecate, and
fornicate during the late evening and early morning hours on and in. the vicinity of the
project site and that the operator was unable or unwilling to discourage or correct these
objectionable conditions. Based upon the complaints received, Use Permit No. 3485
was referred to the Planning Commission on May 4, 2006, for review.
WHEREAS, on May 4, 2006, the Planning Commission discussed the operation,
took input from the neighborhood and directed an official review of the Use Permit. At
the May 4, 2006, meeting, testimony was given to the Planning Commission supporting
the following facts:
a) Jerry Kolbly, General Manager, NBBC represented that. the establishment's
emphasis was on being a restaurant. He also noted that the kitchen is opened
during the hours of alcohol service with the late night menu (pizzas and
appetizers) from 10:00 PM to closing. In addition, Mr. Kolbly noted that "service
from 11:00 pm and 1 am is about 90% alcohol (55% liquor and 45% beer and
wine) and 10% food. (See, Planning Commission Minutes dated May 4, 2006).
Operation of the brewery and the service of alcoholic beverages shall be ancillary
to the primary food service operation of the restaurant pursuant to Condition #9
and this testimony would support a finding of a violation. Condition #10 prohibits
a bar and based upon these representations, staff believes that the limited menu
after 10:00 PM and relationship between the sale of alcohol to food violated both
Condition Nos. 9 and 10.
b) Jerry Kolbly also testified that his staff had received certified alcohol training in-
1999, but due to staff turnover, the-training had since lapsed. (See, Planning
Commission Minutes dated August 17, 2006). No record of completion of a
certified alcohol sales training course is in evidence required pursuant to
Condition F. Failure to properly train the owners and staff who serve alcohol' in
accordance with Condition F would constitute a violation of the condition. On
September 6, 2006, the majority of NBBC staff successfully complete the State
Department of Alcohol Control Board administered License Education on Alcohol
1
and Drugs (L.E.A.D.) training program. If this course had been completed by all
staff members, NBBC would have been in compliance with Condition F that
requires training of owners, staff and employees on responsible alcohol sales.
They may have previously. been in violation of this condition, if there were
employees serving and/or selling alcoholic beverages who had not undergone a
certified training program. All employees have since received the LEAD training.
and the NBBC is believed to be in compliance with Condition F.
c) Bruce Low, a 29th Street resident, testified for a group of concerned citizens,
noting that:
i) They do not wish to close the Brewery as it brings value to the neighborhood
provided it is operated in accordance with the conditions of approval.
ii) There is a discrepancy between the Use Permit . conditions and the condition
of the Coastal Development Permit related to the size of the dining .room on
the weekends.
iii) The Brewery turns into an obtrusive bar operation after 10:30 PIN and they
have bouncers, what restaurant has bouncers?
iv) The operators have made strides but the more serious issues still remain
nuisances to the neighborhood as outlined in the January.2006.
d) Joe Reese, 30th Street resident, testified that patrons have to show their
identification to get into the establishment It is not a restaurant, not with
bouncers and serving only appetizers after 10:00 p.m. This operation between
10:00 PM and 1:00 AM is nothing. more than a bar. This area is out of control
and he is disturbed by the noise in the early mornings.
e) Drew Wetherhault, 30th Street resident, testified that he supported the prior
speakers and he stated that the restaurants and bars need to comply with their
use permits.
f) Came Stade, 29th Street resident, testified she has been awakened with noise
and victimized by patrons.
g) Stephanie Rosanelli, resident of Cannery Village, noted the noise at night and
that she cannot leave her windows open. She too has had her home vandalized
by tagging.
h) Christine Andros, 30th Street resident, testified the challenges are the noise and
patron activities (nuisances) in the parking lot. This establishment operates as a
bar. She has spoken to the bar operator on several occasions to inform him of
disturbances in his parking lot.
1) Tony Shepherdson, 31st Street resident, testified his agreement with previous
speakers and stated any help would be welcomed.
j) Kevin Weeda, the owner of a business located in the area, testified his
agreement with the previous speakers and .asked that this item be brought back
for formal review.
k) The net public area of the establishment is no more than 1500 square feet
Monday through Friday before 5:00 PM and the net public area exceeds 1500
square feet before 5:00 PM on Saturday and Sunday in violation of. Special
Condition No. of Coastal Development Permit No. 5 -93 -137.
1) The site was found to be generally free of litter and not in violation. of Standard
Condition E.
At the conclusion of the discussion, the Planning Commission determined that there
was sufficient information to indicate that the use was operating in violation of the.
conditions of approval .and. in a manner that may have been detrimental to the
reasonable peace and quiet of the neighborhood. The Commission also found that there
was sufficient information to consider potentially modifying the conditions of approval to
alleviate the problems reported by neighbors. The Commission requested and the
Planning Director determined pursuant to Section 20.96.040 of the Municipal Code that
a review of Use Permit No. 3485 was required.
WHEREAS, On August 17, 2006, the Planning Commission held a public
hearing regarding the alleged violations of and potential modifications to the conditions
of approval of Use Permit No. 3485. The hearing was noticed in accordance with
Chapter 20.92 of the Municipal Code and the operator of the Newport Beach Brewing
Company was also mailed a notice of the hearing. The following facts were considered
by the Planning Commission:
a) A Code and Water Quality Enforcement Officer conducted a site visit on
February 10, 2006. It was a Friday night, and the officer noted that there was in
fact a line to get into NBBC and the officer noted that some individuals were
screaming at each other and a high noise level was being emitted from the
premises. This would constitute a violation of the nuisance provision in Condition
D. (Planning Commission Minutes dated August 17, 2006).
b) At the Planning Commission Meeting, Mr. Kolbly, the General Manager of NBBC,
acknowledged that the line to get into the establishment could reach up to thirty
people. Additionally, John Date, a patron of NBBC noted that the establishment
"does a great job with security at the door." (See, Planning Commission Minutes
dated August 17,.2006): .
C) At the Planning Commission meeting, Jill Markowitz, owner of a property near
NBBC contended that individuals were urinating in public (she did not specify that
the individuals came directly from NBBC). She also complained that, in general,
there were loud noises coming from the establishment and the parking lot.
(Planning Commission Minutes dated August 17, 2006). The noisestdisturbances
would be in violation of the nuisance provision in Condition D.
d) Billy Steed testified that the establishment is nice until after 9:00 p.m. when it can
get out of control. Noise, public urination and fights coming out of the bar disturb
the peace..(See, Planning Commission Minutes dated August 17, 2006). The
noises/disturbances would be in violation of the nuisance provision in Condition
D.
E
e) Joe Reese testified at the meeting that he had visited NBBC after 9;00 PM on
August 5, 2005 to see how the NBBC operated. He testified that the security
guard at the door said that after 9:00 PM the restaurant becomes a bar and that
no one under 21 is allowed in or they would lose their liquor license. The
restaurant had patrons standing and loud music was playing. We sat at a table
and asked the waiter for food who told us the kitchen was closed and the only
thing to order was drinks. There were no :chips, pretzels or popcorn being
served. There were three. security guards inside the restaurant and another one
Was outside. It was obvious that .this was acting as a bar, not a restaurant.
Conversely, there was testimony given by Zach Stevens, a NBBC employee, on
duty that night noting that waiters are told to push food even past 11:00 PM to
increase sales and that the kitchen was open as evidenced by the sale of a %Z
chicken salad at midnight. (Planning Commission Minutes dated August 17,
2006). Closing the kitchen thereby eliminating food sales with the continued
sales of alcohol would constitute a violation of Condition #9 as the sale of alcohol
would exceed that of food and a violation of Condition #10 by operating a
prohibited bar.
f) Robby Hogan -, a. manager in charge of the kitchen at the establishment, testified
that he was on duty the.night of August 5, 2005 and the kitchen was open and is
always open until. the establishment closes (Planning Commission Minutes dated
August 17, 2006).
g) Roberta Aley, resident, testified that she frequents the brewery and that she
always has been able to get food after 12:00 PM and that she has not seen any
of these problems. after 12 :00 PM that have been portrayed by previous
speakers. (Planning Commission Minutes dated August 17, 2006).
At the conclusion of the hearing, the Planning Commission directed staff to set Use
Permit No. 3485 for possible modification and /or revocation given that the NBBC had
not addressed issues of nuisance and strict compliance with all conditions of approval.
WHEREAS,. on or about August 21, 2006, Newport Beach Police informed
planning staff that the owners, staff and employees had successfully completed the
L.E.A.D. training classes administered by the State Department of Alcoholic Beverage
Control as required by Condition F. A violation of Condition F had occurred prior to
successful completion of the training curriculum.
WHEREAS, Condition #6 of Use Permit No. 3485 states: "The net public area of
the restaurant/brewpub, which is devoted to daytime use Monday through.Friday (prior
to 5:00 PM.) shall be limited to 1,500 square feet. The balance of the net public area
shall be physically closed off to the public by a fixed barrier and shall not be used until
after 5:00 PM daily."'
WHEREAS, Special Condition #1 of Coastal Development Permit (CDP) No. 5-
93 -137 states :. °Prior to the issuance of a coastal development permit, the applicant
shall execute a deed restriction, in a form and content acceptable to the Executive
Director, which shall provided no more than 1,500 square feet of service area for the
subject restaurant/brewpub. shall be open before 5:OOPM. This document shall run with
W
the land, binding all successors and assigns, and shall be recorded free of prior liens."
On January 19, 1994, the property owner recorded a deed restriction pursuant to
Special Condition #1 that restricts the use of the property in accordance with Special
Condition 91.
WHEREAS, on Sunday October 8, 2006, Newport Beach Police Detectives
visited the NBBC, arriving at about 12:30 PM. They noted that the restaurant was
completely open with patrons occupying tables in all areas with no sections being
closed off. NBBC has admitted during the various public hearings that the NBBC does
not limit the size of the dining room on weekends before 5:00 PM.
WHEREAS, on January 4, 2007, the Planning Commission held a noticed public
hearing on the possible modification of conditions and /or revocation of Use Permit No.
3485. Testimony and a staff report, including a report prepared by the Newport Beach
Police Department, were considered by the Planning Commission:
a) The Newport Beach Police Department investigation did not reveal any violations .
of conditions or a significant law enforcement issue with the operation of the
NBBC. The Department of Alcoholic Beverage Control was contacted and they
reported that the Department did conduct an investigation that was closed due to
a lack of evidence of a violation of license conditions.
b) All NBBC had successfully completed the L.E.A.D. training classes administered
by the State Department of Alcoholic Beverage Control abating past Violation of
Condition F.
c) The NBBC staff voluntarily offered the following physical and operational
changes for consideration as amended conditions of approval:
i) Construction of a trash enclosure cover.
ii) Relocation the entrance from the parking lot side of the building to the
Newport Boulevard entrance when a line of patrons forms to enter the
establishment.
iii) Discontinuation of the removal of condiments and menus from the tables.
iv) Discontinuation of the late night bar menu while keeping the kitchen open at.
all times with a full menu.
v) Installation of signs requesting that patrons be respectful of the neighborhood.
vi) Initiation of regular security sweeps of the parking lot.
vii) Maintenance of a security presence at least %: hour after closing.
viii)Implementation of a recycling collection program that minimizes noise
generation.
ix) Scheduling buildingibusiness maintenance. (waste disposal, deliveries, etc.)
activities during hours less objectionable to nearby residents.
d) Jerry Kolbly, General Manager of the Newport Beach Brewing. Company, testified
that the. queue line location change has worked well. Instituting the full menu in
the late evening and early morning has been advantageous from a business
perspective. The LEAD training program has been a valuable experience they
it�
have undertaken. Every brewpub cards after 10:00 PM in order to protect their
licenses and other restaurants do the same. The Brewing Company maintains a
higher percentage of food sales than alcohol sales and have since day.one.
e) Drew Wetherhault, a local resident, testified that there is a parking problem
before 5:00 PM on the weekends. He also indicated his belief that the
establishment operates as a bar. after 9:00 PM due to high alcohol sales. He
noted his desire to see a reduction in the hours of operation on Friday and
Saturday having them shut down at 11:00 PM like other restaurants to address
nuisances. He also noted that the neighborhood is impacted by after hours
activities in the parking lots south of the Brewery and not all . of them are.
attributable to the Brewing Company's patrons.
f) Joe Reese, local resident, testified that it is his belief that there is no doubt that
the use was intended to be a restaurant and not a bar as alcohol was conditioned
to be ancillary to food service. The Brewing Company has security guards at the
doors and bouncers inside, it is a bar atmosphere. Every weekend he is
awakened by people leaving.the drinking establishments. .
g) Billy Staid, local resident, testified that in spite of the recent operational changes
instituted by the Brewing Company, there are still problems with the operation
principally with patron activity in the parking lot. He asked if the entrance could
be moved to the Newport Boulevard side of the building during the week after
9:00 PM.
h) Stephanie Rosanelli, local resident, testified that noise is a problem and
.suggested that a restaurant would be a better business value.
At the conclusion of the public hearing, the Planning Commission adopted. Resolution
No. 1709 amending Use Permit No. 3485 by modifying the conditions of approval to
clarify the meaning of the conditions principally recognizing that a brewpub was
originally authorized and that there was no violation of. Condition No. 10 and to include
the physical and operational changes offered by the NBBC.
WHEREAS, the grounds for the modification or revocation of a use permit are
established by Condition K of the Use Permit No. 3485, Section 20.89.060.0 and
Section 20.96.040 of the Municipal Code, which provide:
a) Condition K states that, "The Planning Commission may add to or modify
conditions of approval to this use permit upon a.determination that this use
permit causes injury, or is detrimental to the health, safety, peace, morals,
comfort, or general welfare of the community!
b) Section 20.89.060(C) provides that, "The Planning Commission, or the Planning
Director, as the case may be; may revoke a use permit for an alcoholic beverage
outlet upon making one or more of the following findings:
That the permit was issued on the basis of erroneous or misleading
information or misrepresentation.
a
2. That the terms or conditions of approval of the permit have been violated or
that other laws or regulations have been violated.
3. The establishment for which the permit was issued is being operated in an
illegal or disorderly manner.
4. Noise from the establishment for which the permit was issued violates the
Community Noise Control Ordinance (Chapter 10.26 of the Municipal Code).
5. The business or establishment for which the permit was issued has had or is
having an adverse impact on the health, safety or welfare of the
neighborhood or the general public.
6. There is a violation of or failure to maintain a valid ABC license.
The business or establishment fails to fully comply with all the rules,
regulations and orders of the California State Department of Alcoholic
Beverage Control."
c) Section 20.96.040 of the Municipal Code provides that, 'The Planning Director
has the duty to schedule a discretionary permit for a noticed public hearing to
consider its possible revocation provided there are reasonable grounds to do so.
The body conducting the hearing shall revoke the permit upon making one or
more of the following findings:
.1. That the permit was issued on the basis of erroneous or misleading
information or misrepresentation;
2. That the terms or conditions of approval of the permit have been violated or
that other laws or regulations have been violated.
3. That there has been a discontinuance of the exercise or the entitlement
granted by the permit for 180 consecutive days."
WHEREAS, decisions of the Planning Commission under Section 20.89.060 may
be appealed to the City Council pursuant to Section 20.89.070 and decisions of the
Planning Commission under Section 20.96.040 may be appealed to the City Council
pursuant to Section 20.96.040(H) and Chapter 20:95 of the Municipal Code.
WHEREAS, on January 12, 2007, The Cannery Village Concerned filed an
appeal of the Planning Commission's action in accordance. with Chapter 20.95
(Appeals) of the Municipal Code.
WHEREAS, on March 27, 2007, the City Council held a public hearing on the
appeal and the possible modification of conditions and /or revocation of Use Permit No. .
3485; however, the hearing was not properly noticed in accordance with the Municipal
Code. The following information was presented and considered by the City Council:
a) Bruce Low, local resident and representative of The Cannery Village Concerned,
testified to his belief that the NBBC was violating Conditions #9 and #10 as
0
evidenced by the high alcohol sales admitted by the NBBC. He also testified to
his belief that the Condition #6 was not properly modified in September of 1993
to be consistent with Coastal Commission conditions.
b) Kevin Weeda, a resident and business owner operating a business on 30'"
Street, said the group of concerned residents did not want to drive away the
business, merely have the applicant comply with the use permit. Most problems
occur late at night and he believed the business should be limited to an 11:00 PM
closing.
C) Jerry Kolbly, co- owner, Newport Beach Brewing Company, spoke about his
establishment and" the fact that it had maintained the same social atmosphere for
the past 12 years. He has attempted to work with adjacent neighbors and staff to
resolve the issues. There is a security guard stationed at the rear door and
patrons enter and exit only via Newport Boulevard on Friday and Saturday nights
after 10:00 PM as a way to address resident concerns. He testified that the
quarterly sales of food are 52% and 48% alcohol. He indicated that in the past,
the kitchen was closed and that he has now opened the kitchen during all hours
to boost food sales: He . also testified that there has been no significant
operational change in the business since it first opened. Mr. Kolbly confirmed his
earlier statements to the Planning Commission that nearly 90% of sales past
11:00 PM are alcohol; however, it was a guess and.it may be approximately
80 %; clearly more than food.
d) Billy Steed, Cannery Loft owner, adjacent to the Brewery, said he has observed
all types of nuisances in the Brewery parking lot and his belief that the NBBC has
offered no solutions and it ignores complaints.
e) Stephanie Roselli, Cannery Village resident, testified to the NBBC's parking lot
being noisy.
f) Joe Reese testified that he believed the intent of the 1993 and 1999 use permit
approvals were Gear in that this establishment was to be a restaurant and not a
bar. He was personally carded and denied food after 10:00 PM one evening in
2005 and he has observed individuals standing around drinking after 10:00 PM
with no food service. He expressed his belief that this indicates that the NBBC is
a bar and not a restaurant in violation of conditions. He asked for enforcement of
the use permit.
g) Kristen Andros testified that it is her belief that the use operates as a restaurant
until 11:00 p.m. and thereafter it operates as a bar as evidenced by a queuing
line and carding.
h) There was conflicting testimony as to whether the nuisance incidents within the
NBBC parking lot are attributable to patrons of the NBBC.
The Council acted to modify the conditions of approval; however, the action was not
implemented with the adoption of a written resolution in the light of the fact that
inadequate notice of the hearing was provided.
IA
WHEREAS, on July 10, 2007, the City Council held a duty noticed public hearing
regarding the potential modification or revocation of Use Permit No. 3485. The hearing
was noticed as a "de novo" hearing and the subject, time, place and date of the hearing
included in the notice. The notice was published, mailed and posted a minimum of 10
days in advance of the hearing in accordance with the applicable requirements of the
Municipal Code. Evidence both written and oral was presented to and considered by the
City Council.
NOW, THEREFORE, BE IT RESOLVED, as follows:
Section 1. The Recitals above are hereby declared to be true, accurate, and correct
Section 2. The City Council hereby finds that the Administrative Record which was
considered by the City Council in adopting this Resolution consists, without limitation, of all
documents, correspondence, testimony, photographs, and other information presented or
provided to the Planning Director, Planning Commission, City Council and City including,
without limitation, testimony received at City Council and Planning Commission
meetings, staff reports, agendas, notices, meeting minutes, police reports,
correspondence, and all other information provided to the City and retained in the files
of the City, Its staff and attorneys, and such is hereby incorporated by reference into the
Administrative Record and is available upon request ( "Administrative Record ").
Section 3. The City Council finds that notice of this hearing was provided in
conformance with California law and. the Municipal Code of.the City of Newport Beach.
.Section 4. The City Council finds that pursuant to Condition K of the Use Permit No.
3485, Section 20.89.060.0 and Section 20.96.040 of the Municipal. Code, the
Administrative Record, the findings stated above, that sufficient grounds exist to modify
and add to the conditions of approval for Use Permit No. 3485.
Section 5. The City Council of the City of Newport Beach does hereby approve an
amendment and modification of Use Permit No. 3485 as set forth in as Exhibit "A ".
1,5
Section 6. This resolution shall take effect immediately upon adoption. Passed and
adopted by the City. Council of Newport Beach at a regular meeting held on the August
14, 2007 by the following vote to wit:
AYES, COUNCIL MEMBERS Henn, curry, selich, Daigle, Gardner
NOES, COUNCIL MEMBERS Mayor Rosansky
ABSENT, COUNCIL MEMBE S Webb
6JAOR
ATTEST;
,(.
Exhibit A
Use Permit No. 3485
CONDITIONS:
The proposed development .shall be in substantial conformance with the
approved site plan, floor plan and elevations, except as noted below.
2. That a covenant or other suitable, legally binding agreement:shall be recorded
against the off -site parking lot assuring . that all of the requirements of Section
20.63.080 (1) of the Municipal Code,. will be met by the current and future
Property owners. Said covenant. or agreement may include provisions for its
future termination at such time as the development on the building site is
removed or at such time as the floor area devoted to the restauranttbrewpub
reverts back to a base FAR use.
3. The applicant shall provide a minimum of one parking space for each 50 square
feet of net public area before 5:00 p.m. and. one parking space for each 40
square feet of net public area after 5:00 p.m. in conjunction with . the
restaurant/brewpub.
4.. An amended offsite parking. agreement. approved by the City Council shall be
maintained, guaranteeing that a minimum of 41 parking spaces shall be provided
on property located on Lots 18-21 and portions of Lots 17 and 22, Block 230,
Lancaster's Addition, for the duration of the existing and proposed uses located.
on Parcel 1, Parcel Map 92-40 (Resubdivision No. 527).
5. The property owner shall pay for 29_ in -lieu parking spaces in the Cannery
Village Municipal Parking Lot on an annual basis for the nighttime operation
(after 5:00 p.m.). of the restauranttbrewpub use. as agreed upon by the Sales
Agreement between the City of Newport Beach and the property owner.
6. The net public area of. the restauranttbrewpub, which is devoted to daytime. use
prior to 5:00 p.m. shall be limited to 1,500 square feet daily. The balance of the
net public area shall be physically closed off to the public by a fixed barrier and .
shall not be used until after 5:00 p.m. daily.
7. The hours of operation for the restauranttbrewpub shall be limited to the hours
between 6:00 a.m. and 11:00 p.m. Sunday through Thursday and between 6:00
a.m. and 1:00 a.m. on Friday and Saturday.
8. All employees shall park either in the privately owned off -site parking area or in
one of the municipal parking lots in the area.
9. The operation of the brewery and the service of alcoholic beverages shall be
ancillary to the food service operation of the restaurant (e.g. the brewery and
the service of alcoholic beverages may not be conducted without the concurrent
11
operation of the restaurant during all hours the use is open for business). The
quarterly gross sales of alcoholic beverages shall not exceed the gross sales of
food during the same period. The -operator shall at all times maintain records
which reflect separately the total gross sales of food and the total gross sales of
alcoholic beverages. Additionally, the records shall indicate the percentages or
unit volumes of food, beer and other alcoholic beverages sold by the hour from
after 9:00 PM to closing on Thursday, Friday and Saturday nights. Said records
shall be kept no less frequently that on a quarterly basis and shall be submitted
to the Planning Director within 15 days of the end of the calendar quarter.
10. The principal use authorized by this Use Permit is a restaurant/brewpub. The
accessory operation of a bar is permitted provided that the kitchen remains
open for -the service of meals and that a full menu is provided. This Use Permit
shall not be construed as the approval of a bar, cocktail lounge, or other use
with the principal purpose of serving alcoholic, beverages during hours not
corresponding to regular meal service hours nor as the approval of a cabaret,
nightclub, or other use with the principal purpose of providing live entertainment
and /or dancing. The kitchen of the restaurant/brewpub shall be. in operation to
serve meals at all times that the business is open. A full meal menu (including
the service of those meals ordered) shall be made available. Menus and
condiments shall be available at the tables at all times.
11. No outdoor loudspeakers or paging system shall be permitted in conjunction
with the proposed location.
12. A washout area for refuse containers shall be provided in such a way as to
allow direct drainage into the sewer system and not into the Bay or storm
drains, unless otherwise approved by the Building Department.
13. Kitchen exhaust fans shall be designed to control smoke and odor to the
satisfaction of the Building Department.
14. All mechanical equipment and trash areas shall be screened from surrounding
public streets and alleys and adjoining properties. The existing trash enclosure
shall be covered and the doors or gates to the enclosure shall be modified to be
seif- closing and self- locking for security.
15. Deleted
16. Should prerecorded music be played within the restaurant facility, such music
shall be confined to the interior of the building, and all doors and windows shall
be kept closed while such music is played.
17. A special events permit is required for any event or promotional activity outside
the normal operational characteristics of this restaurant business that would
attract large crowdsi 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 to require such permits.
1�
18. Should this business 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 company.
19. The parking lot entrance to the building shall not be used as an entrance or exit
(except in the case of an emergency) after 9:00 PM daily. If a line to enter the
building occurs prior to 9:00 PM, the door shall be closed immediately and not
used as an entrance or exit thereafter and the line shall be relocated to the
Newport Boulevard entrance.
20. The operator shall discourage loitering on site at all times the establishment is
open or employees or owners are present.
21. The operator shall conspicuously post and maintain signs indicating to patrons
to be courteous to residential neighbors while outside the establishment.
22. The applicant shall prepare a detailed security operations and property
maintenance plan within 45 days of approval of this amendment to the Use
Permit. The plan shall be subject to the review and approval of the Police
Department and Planning Department. The plan shall include a full. -time security
guard to be posted in the parking lot owned by the Brewing Company after 9:00
p.m. and through one half hour following closing on Wednesday through
Saturday night, and Sunday through Tuesday night if the night falls on a holiday,
or when a large crowd is anticipated due to a sports event or other promotional
event at the Brewery. The property maintenance portion of the plan shall
address activities including, and not limited to, trash pickup, recycling disposal
and pickup, grease trap cleaning, cooking oil recycling, brewery servicing,
deliveries, cleaning or general building maintenance.
23. Deliveries and exterior property maintenance activities shall not be c6nducted
between 8PM and 8AM daily.
24. The use shall maintain a Type 23 or a Type 75 license to sell alcoholic
beverages from the State Department of Alcoholic Beverage Control. No other
license type shall be permitted without review and approval by the Planning
Commission.
25. Live entertainment and dancing shall be prohibited without an amendment to
this Use Permit and a Live Entertainment Permit and /or a Cafe Dance permit
issued by the City.Manager's Office.
27. This use permit shall be reviewed by the Planning Commission at a noticed
public hearing no later than July 31, 2008, to assess any nuisance issues and to
determine whether the use operates within what was represented to the City
when the use permit was originally granted in 1993 and when the use permit was
amended in 1999. The Planning Director may schedule additional reviews of
this permit if there is a determination that the. use directly causes or is
fq
contributing to conditions found to be detrimental to the community (ttli:e:
provision shall not be construed to diminish the City's ability to enforce Yhi:;: (ast
Permit or any aspect of the Municipal Code).
STANDARD CITY REQUIREMENTS;
A. The project is subject to all applicable City ordinances, policies, and standard-
unless specifically waived or modified by the conditions of approval.
B. Signs and displays shall not obstruct the sales counter, cash register, selier finfi`
customer from view from the exterior.
C, Loitering, open container, and other signs specked by the Alcoholic Bever= aas. -:
Control Act shall be posted as required by.the ABC.
D. The applicant shall take reasonable steps to discourage are,` i,,.ur'
objectionable conditions that constitute a nuisance in parking areas,
alleys and areas surrounding the alcoholic beverage outlet and
properties must be taken during business hours if directly related to
of the subject alcoholic beverage outlet.
E. The exterior of the alcoholic beverage outlet shall be maintained fre : ;:,`:
and graffiti at all times. The owner or operator shall provide for dally <:; ,.,,: ;: , r:•<
trash, litter debris and graffiti from the premises and on all abuttinti;
within 20 feet of the premises.
F. All owners, managers and employees serving and/or selling
beverages shall undergo and successfully complete a certified training,
in responsible methods and skills for serving and selling alcoholic
To qualify to meet the requirements of this section a certified progs"bn: rr.. js'
meet the standards of the California Coordinating Council on
Beverage Service or other certifying/licensing body, which the
designate.. The operator shall provide proof of completion for ali o,.' ::
managers and employees within 30 days of the approval of this arriendm�-a :r
and new employees shall successfully complete the training within 30 days ?)i
initially starting work.
G. The project shall comply with the provisions of Chapter 14.30 of the Newper?
Beach Municipal Code for commercial kitchen grease disposal.
H. All signs shall conform to the provisions of Chapter 20.67 of the Municipal!
Code.
This Use Permit for an alcoholic beverage outlet granted in accordance with thl',
terms of this chapter shall expire within 12 months from the date of appr+a; +::'.
unless a license has been issued or transferred by the California
Department of Alcoholic Beverage Control prior to the expiration date.
J. Coastal Commission approval shall be. obtained prior to issuance of any
building permits. .
K. The Planning Commission may add to or modify conditions of approval to this
Use Permit upon a determination that this Use Permit causes injury, or is
detrimental to the health, safety, peace, morals, comfort, or general welfare of
the community.
STATE OF CALIFORNIA
COUNTY OF ORANGE.
CITY OF NEWPORT BEACH }
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. 2007x57 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
.14th day of August 2007, and. that the same was so passed and adopted by the following vote; to wit:
Ayes: Henn, Curry, Selich; Daigle, Gardner
Noes: Mayor Rosansky
Absent: Webb
Abstain:. . None.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
official seal of said City this 15th day of August 2007
City .Clerk
` Newport Beach, California
O p
(Seal)
sae
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SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement ( "Agreement ") is entered by and among the
Newport Beach Brewing Company, Inc., a California corporation ( "Petitioner "), the City of
Newport Beach, the City Council of the City of Newport Beach, Ed Selich, Michael Henn,
Nancy Gardner, Leslie Daigle, and Keith Curry ( "City" or "Respondents "), and is effective upon
signing by all of said parties ( "Parties ") to this agreement and approval by the City Council of
the City in accordance with law.
RECITALS
A. Petitioner is a California corporation doing business in the City of Newport Beach
at 2920 Newport Boulevard.
B. Petitioner is the holder of Use Permit No. 3485 issued by the City of Newport
Beach on September 27, 1993. Use Permit No. 3485 originally authorized the operation of a
"RestaurantBrewpub" with the following requirements: (1) A Type 23 license issued by
Alcoholic Beverage Control ( "ABC ") permitting the sale of beer; (2) closing hour of 2:00 a.m.
on Friday and Saturday nights, and; (3) 1,500 square foot use restriction prior to 5 p.m., Monday
through Friday. Use Permit No. 3485 was originally issued in conjunction and in coordination
with Coastal Development Permit No. 5-93-137 (the "CDP ") issued to Petitioner by the
California Coastal Commission on July 15, 1993.
C. In 1999, Use Permit No. 3485 was amended by the City Council to permit
Petitioner to operate a RestaurantBrewpub with a Type 75 ABC license, which authorizes the
sale of beer, wine and distilled spirits. With the approval of a RestaurantBrewpub operating
under a Type 75 ABC license, the City amended Use Permit No. 3485 to change the closing hour
on Friday and Saturday from 2:00 a.m. to 1:00 a.m.
D. In January 2006, a number of residents submitted a letter to the City alleging that
Petitioner was operating the RestaurantBrewpub in violation of the conditions set forth in Use
Permit No. 3485.
E. Four months after receipt of the citizens' complaint letter, the Planning
Commission conducted a review of Use Permit No. 3485 on May 4, 2006. On August 17, 2006,
the Planning Commission held a second hearing concerning Use Permit No. 3485. At the third
and final hearing before the Planning Commission, on January 4, 2007, the Commission made
various modifications to Use Permit No. 3485.
F. The Planning Commission's unanimous action was appealed by City residents to
the City Council.
G. The City Council conducted a hearing for Use Permit No. 3485 on March 27,
2007. At the March 27, 2007, hearing, the City Council, by motion, modified Use Permit
No. 3485 to limit the evening hours of sale for distilled spirits.
A*' c46m&r-414, 3
NBBC v. City of Newport Beach
Seftl.mt Agre mt.042808
H. On July 10, 2007, the City Council conducted another hearing on Use Permit No.
3485 following the March 27, 2007 hearing and moved to adopt modification of conditions to
Use Permit No. 3485 similar to the March 27, 2007 determination (with the exception of the
prohibition on the sale of distilled spirits). Additionally, the City Council approved a
modification of Condition 6 of Use Permit No. 3485 which restricted the amount of floor space
of the RestaurantJBrewpub that could be used on weekends before 5:00 p.m.
I. On July 24, 2007, the City Council voted 4 -1 to approve Councilman Henn's
motion to modify Use Permit No. 3485, as reflected in draft Resolution No. 2007 -57 set forth in
the staff report. On August 14, 2007, the City Council amended Use Permit No. 3485 by the
passage of Resolution 2007 -57.
J. In or about October, 2007, Petitioner sent a request for public records to the City
pursuant to provisions of the Public Records Act ( "PRA ") (Govt. Code §§ 6250 et eq.).
K. On November 9, 2007, Petitioner filed in Orange County Superior Court a
Petition for Writ of Mandate and Complaint for (1) Inverse Condemnation, (2) Violation of
Equal Protection, (3) Denial of Procedural Due Process, (4) Deprivation of Civil Rights, and (5)
Promissory or Equitable Estoppel, challenging the City's August 14, 2007, amendment of Use
Permit No. 3485 (the "Action ").
L. On or about January 22, 2008, the City filed a Motion for Judgment on the
Pleadings, seeking dismissal of the entire Action with prejudice on the grounds that the entire
action was filed beyond the statute of limitations.
M. On February 28, 2008, Judge Andler granted the City's Motion for Judgment on
the Pleadings but "with 15 days leave to amend as to every cause of action."
N. On March 14, 2008, Petitioner filed a First Amended Petition for Writ of Mandate
(C.C.P. §§ 1094.5, 1094.6) and First Amended Complaint for: Inverse Condemnation; Violation
of Equal Protection; Denial of Procedural Due Process; Deprivation of Civil Rights; and
Promissory or Equitable Estoppel.
O. Each of the Parties denies that it or they have any liability with respect to the
claims made in the Action.
P. The Parties each recognize that litigation between themselves will require
substantial time, effort, and expense unless the litigation is settled and terminated between them
at this time.
Q. It is the intention of the Parties to effectuate a complete and final settlement as to
any and all claims between them and to reduce the full terms of their settlement to writing.
. R. The City recognizes that the full terms of the settlement will confirm the existing
physical environmental setting that was established in 1993 when the original Use Permit No.
3485 was approved by the City of Newport Beach and that there is no possibility that the
settlement will result in a potential environmental impact. The terms of settlement will comply
with the provisions of the California Environmental Quality Act ( "CEQA ") (Pub. Res. Code §§
NBBC v. City of Newport Beach
Sml=m Age mt.042808 -2-
a5
21000 et seq.) and the Guidelines for Implementation of CEQA (Title 14, California Code of
Regulations, section 15000 etseq.) ( "CEQA Guidelines "). The terms of settlement are exempt
from CEQA. (See CEQA Guidelines §§ 15301 (Class 1), 15125, 15323, Pub. Res. Code §
21065 (Common Sense Exemption).
S. Upon execution, City Council approval in accordance with law, and performance
of the conditions as set forth in this Agreement it is hereby agreed, by and between the Parties
that all Parties to this Agreement will be released from any and all Claims arising out of the facts
that gave rise to this Action.
NOW THEREFORE, in consideration of the above recitals, covenants and agreements
contained herein, the Parties hereto agree as follows:
SETTLEMENT
1. DEFINITIONS.
A. Claims. The term "Claims" means all claims, charges, liabilities, damages,
obligations, costs, expenses (including without limitation attorneys' fees), rights of action and
causes of action of any kind, legal or equitable, whether known or unknown, anticipated or
unanticipated, past, present or future, contingent or fixed, existing, claimed to exist or which may
hereafter exist under applicable common law, contract, tort or other federal, state, local, or
municipal law or regulation, relating to the facts that gave rise to the Action and or pre -date the
Action, including, but not limited to any un -filed claims under the PRA.
B. Action. The term "Action" means the First Amended Petition for Writ of
Mandate and First Amended Complaint filed by Petitioner in the Superior Court of California,
County of Orange, Case No. 07CC01408, entitled Newport Beach Brewing Company, Inc. v.
City of Newport Beach and including each and every cause of action set forth therein as well as
any and all Claims that pre -date the filing of the Action, if any.
2. TERMS OF SETTLEMENT.
City Obligations
A. Nothing in this Agreement is intended to or shall have the lawful effect of
contracting away the City's zoning authority or any other aspect of the City's police power. City
Staff and the City Council have previously reviewed the terms and conditions of Use Permit No.
3485 as most recently amended on August 14, 2007, and have preliminarily concluded that
pursuant to the City Municipal Code City Staff may lawfully present to the City Council for
approval or disapproval, subject to a duly noticed hearing, modifications to Use Permit No. 3485,
as amended on August 14, 2007, by Resolution No. 2007 -57 (the "2008 Use Permit No. 3485 ").
The proposed modifications contained within 2008 Use Permit No. 3485 are set forth as Exhibit
"I" attached hereto and incorporated herein by this reference. City Staff have further
preliminarily concluded that no further CEQA analysis shall be required to be completed prior to
the City approving 2008 Use Permit No. 3485.
NBBC v. City ofNeWPW Beach
Settlement Ageemeot002808 —3—
B. The City Council shall immediately schedule the review of 2008 Use Permit No.
3485 for hearing at the next available City Council hearing. If the City Council fails to approve
the terms of settlement and 2008 Use Permit No. 3485, then Petitioner may, at its sole and
absolute discretion, terminate this Agreement within three (3) calendar days of the decision, at
which time this Agreement shall be of no further force or effect.
C. City shall not charge Petitioner any new fees or charges in connection with City's
review and approval or disapproval of 2008 Use Permit No. 3485, and, at City's sole and
absolute discretion, City shall timely file a Notice of Determination, Notice of Exemption, or
other appropriate CEQA notice that has been reviewed and approved by Petitioner following the
approval of 2008 Use Permit No. 3485.
D. City shall pay Petitioner's attorneys' fees and costs in the amount of Fifty
Thousand Dollars ($50,000.00) as specified below.
Petitioner's Obligations
A. Petitioner and each of its agents shall not oppose the City's approval of 2008 Use
Permit No. 3485 and shall support, both verbally and in writing, if requested by the City, the
City's .approval of 2008 Use Permit No. 3485 ( "Support Covenant "). Petitioner shall agree to
abide by and operate in full compliance with the conditions of approval.
B. Petitioner shall not file any lawsuits, administrative appeals pursuant to the City's
Municipal Code, or take any other action whatsoever, in whatever shape or form, to challenge,
appeal, or otherwise seek to influence in any respect, approval of 2008 Use Permit No. 3485 with
the sole exception of the Support Covenant set forth in the immediate preceding paragraph, A.
Petitioner shall defend, indemnify, release and hold harmless the,City 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, attorneys' fees,
disbursements and court costs) of every kind and nature whatsoever which may arise from or in
any manner relate (directly or indirectly) to Use Permit No. 3485 or 2008 Use Permit No. 3485,
or the approval of 2008 Use Permit No. 3485 based on the City's CEQA determination and/or
the City's failure to comply with the requirements of any federal, state, or local laws, including,
but not limited to, CEQA, the Coastal Act, General Plan and zoning requirements. 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,
or proceeding whether incurred by Petitioner, the City, and/or the parties initiating or bringing
such proceeding.
C. Within (1) one calendar day following the City Council's approval of the 2008
Use Permit No. 3485, and payment in full to Petitioner of $50,000.00 in the attorneys' fees and
costs above - referenced ("Final Approval Date'), Petitioner shall file a dismissal of its Action,
with prejudice, in Orange County Superior Court.
General Obligations of All Parties
A. The Parties will use their best efforts and cooperate as necessary in performing
and implementing this Agreement.
NBBC v. City of Newport Beach
Settlement Ageemmt.042808 -4
3. GENERAL RELEASE AND DISMISSAL.
A. General Release and Discharge of Claims. In consideration of the terms and
conditions called for herein, the Parties to this Agreement completely release and forever
discharge one another, and their past, present, and future officers, officials, trustees, directors,
stockholders, attorneys, agents, servants, representatives, employees, departments, agencies,
subsidiaries, affiliates, partners, predecessors, successors -in- interest, participating insurance
carriers, insurers, and assigns and all other persons, firms, corporations, departments or entities
with whom any of the former have been, are now, or may hereafter be affiliated, of and from any
and all Claims.
B. Dismissal of the Action. Petitioner shall dismiss the Action with prejudice as to
all Respondents within (1) one calendar day following the Final Approval Date.
C. Waiver of Claims. It is the intention of the Parties, in executing this Agreement
and receiving the consideration recited herein, that this Agreement is effective as a full and final
accord and satisfaction and mutual and general release of all claims, debts, damages, liabilities,
demands, obligations, costs, expenses, disputes, actions or causes of action, that each Party may
have against the other by reason of any acts, circumstances or transactions relating to the Action
and occurring before the date of this Agreement. In furtherance of this intention, the Parties
hereby acknowledge that they are familiar with California Civil Code section 1542 and that they
hereby expressly waive the protection of that section, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.
The Parties each waive and relinquish any right or benefit that they have or may have
under California Civil Code section 1542. That is, no Party hereto may invoke the benefits of
California Civil Code section 1542, or any such similar law, in order to prosecute any claims
released hereunder. In connection with such waiver and agreement, each Party acknowledges
that they are aware that they or their attorney may hereafter discover claims or facts or legal
theories in addition to or different from those which they know or believe to exist with respect to
the Action, but that it is the intention hereby to fully, finally, and forever settle and release all of
the claims, known or unknown, suspected or unsuspected, which do now exist, may exist, or
heretofore have existed between the Parties by reason of any acts,. circumstances, facts, events, or
transactions relating to the Action and occurring before the date of this Agreement. It is
expressly acknowledged and understood by the Parties to this agreement that they separately
bargained for the foregoing waiver of the provisions of section 1542 of the California Civil
Code. The Parties to the Agreement consent that this release shall be given full force and effect
in accordance with each and all of the express terms and provisions, including those terms and
provisions related to such unknown and unsuspected claims, demands, and causes of action
relating to or arising out of the Action.
NBBC v. City of Newport Beach
Settlement Agre me 042808 -5-
D. Representations and Warranties. Each Party represents and warrants to the other
that except as otherwise expressly provided in this Agreement, they are not relying on any
representation whatsoever, whether express or implied, including without limitation,
representations of fact or opinion made by or on behalf of the Parties herein.
4. MISCELLANEOUS PROVISIONS.
A. Aside from the attorneys' fees to be paid by City to Petitioner as set forth in this
Agreement, the Parties to this Agreement shall not be entitled to and shall not seek to recover
from each other the costs of suit or attorneys' fees incurred in connection with this Action or the
negotiations or preparation of this Agreement. Each Party shall bear its own costs, attorneys'
fees, expert fees, and any and all other expenses.
B. Except as otherwise specifically provided in this Agreement, the Parties will bear
their own legal expenses, expert fees and attorneys' fees incurred to date.
C. Petitioner warrants that there has been no assignment or other transfer of interest
in the Action or any Claims relating to the Action to any other person, trust, or other entity who
is not a party to this Agreement.
D. This Agreement and each and all of the representations, warranties, and covenants
of the Parties made herein is binding upon the successors, assigns, heirs, and representatives of
the Parties and each and all of their heirs, respective successors, assigns, heirs, and
representatives. In this regard, Petitioner and City each acknowledge and agree that Petitioner
may assign, at its sole and absolute discretion, any rights and obligations Petitioner has with
respect to this Agreement and Use Permit No. 3485 to a third party or third parties. Prior to
assigning any rights or obligations Petitioner has with respect to this Agreement and Use Permit
No. 3485 to a third party, Petitioner shall obtain written confirmation that such assignee shall be
bound by the terms of this Agreement and that such Assignee shall also be entitled to receive the
benefits of this Agreement and Use Permit No. 3485.
E. The Parties to this Agreement mutually warrant and represent they have read and
understand this Agreement and that this Agreement is executed voluntarily and without duress or
undue influence on the part of, or on behalf of, any Party hereto. The Parties hereby
acknowledge that they have been represented in negotiations and for the preparation of this
Agreement by counsel of their own choice; that they have read this Agreement and have had it
fully explained to them by such counsel; and that they are fully aware of the contents of this
Agreement and of the legal effects of each and every provision thereof
F. This Agreement contains the sole and entire agreement and understanding
between the Parties with respect to the entire subject matter hereof, and any and all prior
discussions, negotiations, commitments or understandings related hereto, if any, are hereby
merged herein. No representations, oral or otherwise, express or implied, other than those
specifically contained in this Agreement, have been made between the Parties. No other
agreements not specifically contained herein, oral or otherwise, shall be deemed to exist or to be
binding between the Parties.
NBBC v. City of Nmpart Brach
srmrmrm AFWMOuLO42808 -6- _ 1
G. This Agreement and the releases contained herein and the consideration referred
to herein are done to save litigation expense and to effect the compromise and settlement of
claims and defenses which are denied, disputed, and contested. Nothing contained herein shall
be construed as an admission by any Party of any liability of any kind to any other Party. The
Parties agree that each Party expressly denies that it is in any way liable or indebted to any other
Party and no person interpreting this Agreement shall be able to infer that any Party has engaged
in any conduct giving rise to liability to any other Party.
H. This Agreement shall be construed in accordance with the laws of the State of
California. In the event this Agreement must be enforced by a court of law, the Parties hereby
agree that said action shall be tried in the County of Orange, State of California.
I. This Agreement may be executed in one or more subparts or counterparts, each of
which, shall be an original but all of which, together, shall be deemed to constitute a single
document.
J. The warranties and representations made in this Agreement are deemed to survive
the execution of this Agreement.
K. BY SIGNING THIS AGREEMENT, THE PARTIES CERTIFY THAT THEY
HAVE READ IT, THAT THEY HAVE CONSULTED WITH THEIR LEGAL COUNSEL
ABOUT ITS EFFECT, AND THAT THEY FULLY UNDERSTAND IT.
[Signatures on next page]
NBBC v. City ofNewpon Beach
Settle t Agcement.042808 -7-
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of
the date fast above written and their attorneys have indicated their approval as to fort by their
respective signatures in the appropriate spaces below.
PETITIONER:
NEWPORT BEACH BREWING COMPANY, INC.
By: .
Name
Title
Dated:
By:
Name
Title
APPROVED AS TO FORM AND CONTENT:
MILES • CHEN LAW GROUP, P.C.
Stephen M. Miles, Attorneys
for Newport Beach Brewing Company, Inc.
Dated:
[Signatures continued next page]
NBBC v. City of Newport Beach _g_
SeltlemeotAgeemeot042808 % 1
RESPONDENT,
CITY OF NEWPORT BEACH, CITY
COUNCIL
By:
Edward D. Selich,
Mayor
RESPONDENT,
CITY OF NEWPORT BEACH, CITY
COUNCIL
By:
Michael F. Henn,
Councilmember
Date:
RESPONDENT,
CITY OF NEWPORT BEACH, CITY
COUNCIL
By:
Nancy Gardner,
Councilmember
ATTEST:
By:
LaVonne Harkless,
City Clerk
RESPONDENT,
CITY OF NEWPORT BEACH, CITY
COUNCIL
By:
Leslie Daigle,
Mayor Pro Tern
RESPONDENT,
CITY OF NEWPORT BEACH, CITY
COUNCIL
By:
Keith D. Curry,
Councilmember
APPROVED AS TO FORM:
CITY OF NEWPORT BEACH
0
Robin L. Clauson,
City Attorney
Date:
APPROVED AS TO FORM AND
CONTENT:
RUTAN & TUCKER,.LLP
By:
John A. Ramirez,
Attorneys for the City of Newport Beach
NeBC V. City of Newport Owh
Sealmoeot Agmmmt.042808 -9-
Exhibit "1"
Condition No. 6 to Use Permit No. 3485, as amended and approved on August 14, 2007, shall be
amended as shown in redline and strikeout as follows:
Use Permit No. 3485, Condition No. 6:
6. The net public area of the restaurant/brewpub, which is devoted to daytime use prior to
5:00 p.m. shall be limited to 1,500 square feet dai4y Monday through Friday. This
restriction specifically excludes Saturday and Sunday when parking spaces devoted to
office uses are not necessary. The balance of the net public area shall be physically
closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m.
�B3'- Monday throu hhg Friday (the "Weekday Closure Area ") Distilled spirits shall not
be served within the Weekday Closure Area on Saturday and Sunday before 5:00 p.m.
Use Permit No. 3485, as amended and approved on August 14, 2007, shall be amended with
New Condition No. as follows:
"Newport Beach Brewing Company may apply for at least three special event days per
calendar year. City shall not be obligated to approve such special events permits, but if
the City does approve a special event permit, the approval of the special event permit(s)
shall not require the approval of an amendment to this permit."
NBBC v. City ofNewpon Be h
Settlement Agcement042808 - -10-
NOTICE OF PUBLIC HEARING
NOTICE OF INTENT TO CONSIDER THE MODIFICATION
AND ADDITION TO THE CONDITIONS OF APPROVAL OF
USE PERMIT NO. 3485 AT A PUBLIC HEARING OF THE
CITY COUNCIL FOR THE NEWPORT BEACH BREWING
COMPANY LOCATED AT 2920 NEWPORT BOULEVARD
(PA 2006 -177)
NOTICE IS HEREBY GIVEN that the City Council for the City of Newport Beach will hold
a public hearing to consider a modification of Condition No. 6 related to the net public
area devoted to daytime use prior to 5:00 p.m. and the addition of a condition of approval
acknowledging that the Newport Beach Brewing Company (NBBC) may apply for at least
three special event permits per year. This hearing stems from a settlement agreement
between the NBBC and the City wherein the City Council agreed to consider this
modification and addition to the conditions of approval. A copy of the settlement
agreement and files regarding this matter are available at the City of Newport Beach
Planning Department.
NOTICE IS HEREBY GIVEN that the modification and addition to the conditions of
approval is exempt from the provisions of the California Environmental Quality Act
(CEQA) pursuant to Section 15301 (Existing Facilities) of the Guidelines for the
Implementation of CEQA as it involves operational alterations of an existing facility
where no expansion of the use occurs.
NOTICE IS HEREBY FURTHER GIVEN that said public hearing will be held on May 13.
2008, at the hour of 7:00 p.m. in the City Council Chambers (Building A) at 3300 Newport
Boulevard, Newport Beach, California, at which time and place any and all persons
interested in the matter may appear and be heard. 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. A copy of the settlement agreement and other relevant
materials is on file at the City. For information call (949) 644 -3232.
oar%
LaVonne M. Harkless, City Clerk
City of Newport Beach
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RONALD J MILLAR
PO BOX 1162
NEWPORT BEACH,CA 92659
WILLIAM R HANSEN
3334 E COAST HWY #295
CORONA DEL MAR,CA 92625
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iFeed Paper for Easy Peel Feature j j
KEITH CALLAWAY RESIDENCE NEWPORT
2212 PACIFIC COAST HWY 2824 NEWPORT BLVD
HUNTINGTON BEACH,CA 92648 NEWPORT BEACH,CA 92663
RAYMOND HAWS
223 CASTELLANA N
PALM DESERT,CA 92260
THERESA CAGNEY MORRISON THERESA CAGNEY MORRISON
23 CORPORATE PLAZA DR #205 23 CORPORATE PLAZA DR #205
NEWPORT BEACH,CA 92660 NEWPORT BEACH,CA 92660
OPERATING L P CATELLUS CITY OF NEWPORT BEACH
2235 FARADAY AVE #0 PO BOX 1768
CARLSBAD,CA 92008 NEWPORT BEACH,CA 92658
JON A SHEPARDSON BRASELLE
PO BOX 2971 536 POPLAR ST
NEWPORT BEACH,CA 92659 LAGUNA BEACH,CA 92651
THIRTY FIRST STREET LLC HAMPSHIRE PROPERTIES LLC
415 30TH ST 6034 W COURTYARD DR #307
NEWPORT BEACH,CA 92663 AUSTIN,TX 78730
DINO & ARDENIA CAPANNELLI THOMAS & JOAN DIXON
430 31 ST ST 428 31 ST ST
NEWPORT BEACH,CA 92663 NEWPORT BEACH,CA 92663
POLIQUIN FAMILY LTD RENE ANDRE BARGE
18951 NEWTON AVE 408 31 ST ST
SANTA ANA,CA 92705 NEWPORT BEACH,CA 92663
RENE A BARGE MARK S FAULCONER
408 31 ST ST 411 30TH ST
NEWPORT BEACH,CA 92663 NEWPORT BEACH,CA 92663
BRIAN WESLEY RAY V C INTER VIVOS TAORMINA
425 30TH ST #10 PO BOX 485
NEWPORT BEACH,CA 92663 CORONA DEL MAR,CA 92625
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MARVIN P ADLER
30123 SKIPPERS WAY DR
CANYON LAKE,CA 92587
THERESA CAGNEY MORRISON
23 CORPORATE PLAZA DR #205
NEWPORT BEACH,CA 92660
THIRTY FIRST STREET LLC
407 31 ST ST
NEWPORT BEACH,CA 92663
MICHAEL T & ROSEMARY K CARSON
3424 VIA OPORTO #204
NEWPORT BEACH,CA 92663
SUZANNE J FINAMORE
41931 ST ST #A
NEWPORT BEACH,CA 92663
FRANK C MARSHALL
PO BOX 540
NEWPORT BEACH,CA 92661
BARRY FAMILY INC
605 VIA LIDO SOLD
NEWPORT BEACH,CA 92663
THOMAS E KEEFER
433 OGLE CIR
COSTA MESA,CA 92627
MARY H WILLIAMSON
426 31 ST ST
NEWPORT BEACH,CA.92663
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JACKSONIJACKSON 420 LLC
51031 STST#A
NEWPORT BEACH,CA 92663
1 A, See Instruction Sheet i /\VEW@516o®
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JENNY M GILCHRIST MINER
410 31 ST ST #A 365 VIA LIDO SOUD
NEWPORT BEACH,CA 92663 NEWPORT BEACH,CA 92663
GREG & DEBORAH V GRISAMORE MARY ANNE TURLEY -EMETT FUNDING SOUTHERN
412 31 ST ST 25 BAY IS 419 30TH ST
NEWPORT BEACH,CA 92663 NEWPORT BEACH,CA 92661 NEWPORT BEACH,CA 92663
ROBERT D FAINBARG GLASSMAN DREW M WETHERHOLT
14041 LIVINGSTON ST 215 30TH ST 217 30TH ST
TUSTIN,CA 92780 NEWPORT BEACH,CA 92663 NEWPORT BEACH,CA 92663
STEVEN C NICHOLSON MARY A ROUSE KENNETH & MARY ROUSE
419 EL MODENA AVE 522 SEAWARD RD 522 SEAWARD RD
NEWPORT BEACH,CA 92663 CORONA DEL MAR,CA 92625 CORONA DEL MAR,CA 92625
SCOTT L ROTH
MARY EILEEN LEE
DAVID L HAMMOND
217 29TH ST
219 29TH ST
10 CALLE CABRILLO
NEWPORT BEACH,CA 92663
NEWPORT BEACH,CA 92663
FOOTHILL RANCH,CA 92610
DAVID L HAMMOND
JOEL F FEITLER
ROBERT D FAINBARG
10 CALLE CABRILLO
407 30TH ST #A
14041 LIVINGSTON ST
FOOTHILL RANCH,CA 92610
NEWPORT BEACH,CA 92663
TUSTIN,CA 92780
KEVIN WEEDA
THOMAS BLUROCK
HOSMAN PROPERTIES
439 30TH ST
401 30TH ST
129 W WILSON ST #100
NEWPORT BEACH,CA 92663
NEWPORT BEACH,CA 92663
COSTA MESA,CA 92627
PENINSULA RETAIL PARTNERS LLC
JOHN L WESTREM
CYNTHIA KLAN IAN
415 29TH ST
10D6 E BALBOA BLVD
PO BOX 8092
NEWPORT BEACH,CA 92663
NEWPORT BEACH,CA 92661
NEWPORT BEACH,CA 92650
CITY OF NEWPORT BEACH
ARNOLD FEUERSTEIN
VALLE BRETT H DEL
., 3300 NEWPORT BLVD
129 W WILSON ST #1 DO
415 29TH ST
NEWPORT BEACH,CA 92663
COSTA MESA,CA 92627
NEWPORT BEACH,CA 92663
! JILL S MARKOWICZ
BRUCE J LOW
JILL S MARKOWICZ
413 29TH ST
411 29TH ST
413 29TH ST
NEWPORT BEACH,CA 92663
NEWPORT BEACH,CA 92663
NEWPORT BEACH,CA 92663
ftiquettes fadles A peler Consultez la feulfle wwwaveryeom
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FINE ARTS BUCK
410 29TH ST
NEWPORT BEACH,CA 92663
KATSUMI IMOTO
552 JADE TREE DR
MONTEREY PARK,CA 91754
SAM & JOAN TROUT
2901 NEWPORT BLVD
NEWPORT BEACH,CA 92663
PORT PROPERTIES INC
PO BOX 485
LAGUNA BEACH,CA 92652
BRYAN M CHONG
131 PECAN LN
FOUNTAIN VALLEY,CA 92708
DAVID FORTINI
222 30TH ST
NEWPORT BEACH,CA 92663
EDVID NERSESSIAN
14545 FRIAR ST
VAN NUYS,CA 91411
MICHAEL J JR BURNS
216 112 30TH ST
NEWPORT BEACH,CA 92663
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i
sit
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LAWRENCE C SCHNACK MARY LEE
3404 BRANDYWINE ST 219 29TH ST
SAN DIEGO,CA 92117 NEWPORT BEACH,CA 92663
West Newport Beach Association
Attn: Paul Watkins
6408 W. Oceanfront
Newport Beach, CA 92663
FRANCES A BURY
106 VIA UNDINE
NEWPORT BEACH,CA 92663
SALVO DESIGN GROUP INC
2817 NEWPORT BLVD
NEWPORT BEACH,CA 92663
PORT PROPERTIES INC
PO BOX 485
LAGUNA BEACH,CA 92652
FINE ARTS BUCK
410 29TH ST
NEWPORT BEACH,CA 92663
JEROME J JR & KATHLEEN A REISS
1604 N SHAFFER ST
ORANGE,CA 92867
JEROME JOSEPH JR REISS
214 112 30TH ST
NEWPORT BEACKCA 92663
Newport Beach Brewing Company
2920 Newport Boulevard
Newport Beach, CA 92663
SAM & JOAN TROUT
2901 NEWPORT BLVD
NEWPORT BEACH,CA 92663
SAM & JOAN TROUT
2901 NEWPORT BLVD
NEWPORT BEACH,CA 92663
BATLEY FAMILY TRUST
1501 W BALBOA BLVD
NEWPORT BEACH,CA 92663
SAMMI A NIELSEN
220 30TH ST
NEWPORT BEACH,CA 92663
ARINESS INC
27 SPLENDORE DR
NEWPORT COAST,CA 92657
STACY NIELSEN
220112 30TH ST
NEWPORT BEACH,CA 92663
Stephen Miles
9911 Irvine Center Drive, Suite 150
Irvine, CA 92618
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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, 1961, and A -24831 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
party 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:
May 3, 2008
I declare, under penalty of perjury, that
the foregoing is true and correct.
Executed on May 5, 2008 at
Costa Mesa, California.
E 02c f
Signabdre
NO110E OF PUBLIC HEARING
NOTICE OF INTENT 70
CONSIDER THE MODI-
FICA7ION AND ADDI-
TION TO THE CONDI-
TIONS OF APPROVAL
OF USE PERMIT NO.
3485 AT A PUBLIC
HEARING OF THE CITY
COUNCIL FOR THE
NEWPORT BEACH
BREWING COMPANY
LOCATED AT 2920
NEWPORT BOULEVARD
(PA 2006 -177
NOTICE IS HE FBT
GIVEN that the Cdyl
Council for the City of
Newport Beach will hold
a public hearing to con
side, a modification of
Condition No. 6 related
to the net public area
devoted to daytime use
prior to 500 p.m. and
the addition of a condi-
tion of approval ac-
knowledging that the
Newport Beach Brewing
Company (NBBC) may
.apply for at least three
special event permits
per year. This hearing
stems from a settle-
ment agreement be
tween the NBBC and the I
City wherein the City
Council agreed to con
sider this motlBication
and addition to the con-'
ditions of approval. A
copy of the settlement
agreement and files re-
availablehat Me City Of
Newport Beach Planning
Department.
NOTICE IS HEREBY
GIVEN that the modi-
"Cation and addition to
the conditions of ap-
proval is exempt from
the provisions of the
California Enin.minen-
tal Oualily Act (CEQA)
of an existing facility
where no expansion of
the use occurs.
NOTICE IS HEREBY
FURTHER GIVEN that
said public hearing will
be held on May 13,
2008. at the hour of
7;00 p.m. in the City
Council Chambers
(Building A) at 3301
Newport Boulevard,
Newport Beach. Califor-
nia, at which time and
place any and all per
sons interested in the
matter may appear and
be heard. If you chal-
lenge this project in
court, you may be
limited to raising only
those Issues you or
someone else raised at
the public hearing (de-
scribed in this notice)
or in written corre-
spondence delivered to
the City, at. or prior to,
the public hearing- A
copy of the settlement
agreement and other
relevant materials is on
file at the City. For
information call (949)
6443232.
LaVonne M. Harkless.
City Clark
City of Newport Beach
Published Newport
Beach/Costa Mesa Dally
Pilot May 3, 2008 Sa488