Loading...
HomeMy WebLinkAbout16 - Woody's Wharf Conditional Use Permit Located at 2318 Newport Boulevard (PA2015-158) ���WPOQT CITY OF e= NEWPORT BEACH CqC/F00.NP City Council Staff Report October 13, 2015 Agenda Item No. 16 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Kimberly Brandt, Community Development Director - 949-644-3232, kbrandt@newportbeachca.gov PREPARED BY: Gregg Ramirez, Senior Planner PHONE: 949-644-3219, gramirez@newportbeachca.gov TITLE: Woody's Wharf Conditional Use Permit Located at 2318 Newport Boulevard (PA2015-158) ABSTRACT: Amend Conditional Use Permit No. UP2011-010 as follows: 1) extend the opening hour of the restaurant from 10:00 a.m. to 9:30 a.m., daily; 2) extend the closing hour of the restaurant's outdoor dining area from 11:00 p.m. to 2:00 a.m., on Thursday nights as well as up to 12 additional nights per year, which are in addition to the permitted 2:00 a.m. closing hour on Friday and Saturday nights; 3) allow patron dancing within the interior of the restaurant on Thursday nights and up to 12 additional nights per year, which are in addition to the permitted patron dancing on Friday and Saturday nights; 4) allow the easterly outdoor area, adjacent to the boat dock ramp, to be used by patrons for smoking, eating, and/or drinking on a daily basis until 8:00 p.m.; 5) delete conditions of approval related to the outdoor dining area patio cover requirement; and 6) modify and/or delete various operational conditions of approval related to the restaurant's operations. This City Council continued this item at the request of the City Manager from September 22, 2015 to October 13, 2015. RECOMMENDATION: a) Conduct a public hearing; b) Waive the Conditional Use Permit filing fee; c) Find the project to be categorically exempt pursuant to Title 14 of the California Code of Regulations (Section 15301, Article 19 of Chapter 3, Guidelines for Implementation of the California Environmental Quality Act) under Class 1 (Existing Facilities); and Woody's Wharf Conditional Use Permit October 13, 2015 Page 2 d) Adopt Resolution No. 2015-75, A Resolution of the City Council of the City of Newport Beach, California, Approving an Amendment to Conditional Use Permit No. UP2011-010 (and Re-Number as UP2015-037) to Modify Opening Hours and Closing Hours; Design and Operational Conditions of Approval Related to the Outdoor Dining Area Patio; Days Patron Dancing is Allowed; Use of the Easterly Outdoor Patio; and Modifying Operational Conditions of Approval at an Existing Eating and Drinking Establishment Located at 2318 Newport Boulevard (PA2015-158). FUNDING REQUIREMENTS: Fee Waiver Due to the relationship of this request to the pending settlement agreement, staff suggests the City Council waive the application fee of a $5,000.00 deposit. DISCUSSION: Project Setting The restaurant is located on the east side of Newport Boulevard between 24th and 26th Streets overlooking the Rhine Channel. Refer to Attachment H for the vicinity map. The property is comprised of three lots with a total area of approximately 13,260 square feet, with a commercial building which crosses the interior property lines. The restaurant has been in operation since 1965 and offers live entertainment. The restaurant building measures approximately 3,305 square feet with 1,173 square feet of interior dining area and a 709 square-foot outdoor dining area. There are 26 on-site parking spaces (6 spaces are tandem in accordance with the valet parking plan). The site plan and floor plans are depicted in Attachments F and G. The project provides space for approximately eight (8) boats on the Rhine Channel, available for patrons who choose to take a boat to the restaurant. The current conditional use permit also reduced the number of required parking spaces from 46 to 40 and allows the use of valet parking on an as-needed basis. Project Description The request involves changes to operation characteristics that: 1) extend the opening hour of the restaurant from 10:00 a.m. to 9:30 a.m., daily; 2) extend the closing hour of the restaurant's outdoor dining area from 11:00 p.m. to 2:00 a.m., on Thursday nights as well as up to 12 additional nights per year, which are in addition to the permitted 2:00 Woody's Wharf Conditional Use Permit October 13, 2015 Page 3 a.m. closing hour on Friday and Saturday nights; 3) allow patron dancing within the interior of the restaurant on Thursday nights and up to 12 additional nights per year, which are in addition to the permitted patron dancing on Friday and Saturday nights; 4) allow the easterly outdoor area, adjacent to the boat dock ramp, to be used by patrons for smoking, eating, and/or drinking on a daily basis until 8:00 p.m.; 5) delete conditions of approval related to the outdoor dining area patio cover requirement; and 6) modify and/or delete various operational conditions of approval related to the restaurant's operations. Background A restaurant, with various operating characteristics, has existed at the location since 1965. The current operator took over management of the business in 2002. A September 2013 Planning Commission approval allowed changes to the use of the outdoor dining patio, waived six parking spaces, allowed valet parking to be used on an "as-needed" basis, and allowed patron dancing on a limited basis. This decision was subsequently appealed to the City Council and resulted in the modification of the Planning Commission decision on October 8, 2013. Following the Council decision, the applicants pursued legal action through the Orange County Superior Court and ultimately the California Court of Appeals. On January 29, 2015, in Woody's Group, Inc. v. City of Newport Beach and Michael Henn (OCSC Case No. 30-2013-00687091; Court of Appeals Case No. G050155), the Court of Appeal (4th Dist. Div. 3) issued an Order that reversed the City's preliminary injunction and directed the trial court to vacate the order denying Woody's petition for writ of mandate and enter a new order granting it. This Order had the effect of overturning the City Council's October 8, 2013, action and upholding the Planning Commission's September 5, 2013 decision (i.e., allowing the outdoor patio area to remain open until 2:00 a.m. on Friday and Saturday, extending the opening hour of the restaurant and outdoor patio area from the 11:00 a.m. to 10:00 a.m. daily, allowing dancing in the interior of the restaurant on Friday and Saturday, and allowing for the removal of tables and chairs in the interior of the restaurant, etc.). This request is to modify the Planning Commission's September 5, 2013, decision. Woody's Wharf Conditional Use Permit October 13, 2015 Page 4 Analysis General Plan/CLOP The Land Use Element of the General Plan and the Coastal Land Use Plan (CLUP) designate the site and the adjacent properties as Mixed Use-Water Related (MU-W2 and MU-W, respectively). The project is consistent with this designation since an eating and drinking establishment is a visitor-serving and commercial use. Furthermore, Land Use Policy LU 6.19.2 (Bay Fronting Properties) encourages marine-related and visitor- serving retail, restaurant, hotel, institutional, and recreational uses, with some allowance for residential use. Both the General Plan and CLUP set a development intensity limit of 0.5 floor area to land area ratio (FAR) for non-residential development. The 3,305 total square-foot building and 13,260 gross square feet for the project site results in an FAR of 0.25. The project complies with the maximum FAR permitted by the General Plan FAR designated for commercial uses. Zoning The existing eating and drinking establishment is located in MU-W2 (Mixed-Use Water Related) Zoning District and is consistent with the land uses intended for properties fronting Newport Boulevard within the McFadden Square/Cannery Village neighborhood. Main Outdoor Dining Patio Area The main outdoor dining area is located outside of the main dining room of the restaurant and measures 709 square feet with seating for 66 persons. The removal of a portion of the tables and chairs as proposed on Thursday, Friday, and Saturday nights will provide standing area for patrons of approximately 400 square feet. The number of patrons that will be allowed to occupy the space will be subject to the Chief Building Official's determination. Additionally, the applicant is requesting the deletion of the requirement of the installation of a patio covering in conjunction with the use of the outdoor dining patio area after 11:00 p.m. and the revision or deletion of related conditions of approval (Attachment CC 3, Condition Nos. 2, 4, 27, 28, 57, and 59-63). The use of patio area for live entertainment and/or dancing would be prohibited, and the restaurant operations will be subject to the City's noise control standards as stated in Condition No. 26. Staff also notes that an acoustical study prepared in January 2013, determined that the music from Woody's Wharf is contained within the structure and outdoor patio area. The report Woody's Wharf Conditional Use Permit October 13, 2015 Page 5 further concluded that closing the outdoor patio area had no effect on the noise levels and the noise created on the outdoor patio area is negligible (Attachment E). Therefore, staff is supportive of removing the requirement to install a patio cover and related conditions of approval. Staff also notes that the installation of a patio cover required a variance, which Planning Commission also approved in September 2013. Since the patio cover will not be installed, the variance will not be activated and will automatically expire. Condition No. 7 is proposed to be modified to delete the restriction that special events and/or promotional activities from occurring within the outdoor dining patio. Staff is supportive of this modification given that special event permits are evaluated and approved on a case-by-case basis with appropriate conditions of approval to ensure neighborhood compatibility, public safety, etc. Extending the hours of operation of the outdoor dining patio is discussed in a separate section below. Ancillary Outdoor Patio (Dock Ramp) The second, smaller outdoor patio area adjacent to the boat dock ramp on the easterly side of the property is proposed to be used by customers for smoking, eating, and/or drinking on a daily basis until 8:00 p.m. Although the future Newport Bay Marina development is a mixed-use project, the tenant spaces adjacent to this patio are being developed for office and retail uses that will provide a buffer between this patio area and the residences. See Attachment G for the location of this patio. Live Entertainment and Dancing The restaurant is currently allowed to have live entertainment and dancing pursuant to the Planning Commission approval in September 2013. The live entertainment operates in conjunction with a valid live entertainment permit that was issued on March 14, 2006. Although the current conditional use permit allows dancing, the live entertainment permit must be amended to reflect approved changes to the operation and related conditions of approval. The proposed amendment would allow dancing within the interior of the restaurant on Thursday, Friday and Saturday nights and up to 12 additional nights per year, where it is currently limited to Friday and Saturday nights. The 12 additional nights would be at the operator's discretion, but would likely be used during summer or holidays and the revised condition of approval requires the operator Woody's Wharf Conditional Use Permit October 13, 2015 Page 6 to notify the Community Development Director 24 hours prior to having dancing on those additional nights (Condition No. 34). Operationally, the dance floor opens at approximately 10:00 p.m., the tables and chairs within the center of the main dining area are removed to create an approximate 400 square-foot dance floor. Additionally, a portion of the tables and chairs on the outdoor dining area are removed to provide an area for patrons displaced by the dance floor, as depicted on the Late Hour Floor Plan (Attachment F). Similar to the 2013 conditional use permit approval, the draft resolution carries forward conditions of approval that include a requirement for an Operator License, security plan, licensed security personnel when live entertainment or dancing is provided (Condition No. 35), and employee training in the service of alcoholic beverages. It is anticipated that the presence of security personnel and the employee training will help reduce incidents that cause a drain on police resources in the vicinity. These conditions have been incorporated into the draft resolution (Attachment A). Hours of Operation The proposed amendment includes a change of the restaurant opening hour from 10:00 a.m. to 9:30 a.m., to accommodate brunch and breakfast and maintain the closing hour of 2:00 a.m., daily for the interior of the restaurant. Proposed Hours of Operation Restaurant Area Sunday-Wednesday Hours Thursday—Saturday Hours Interior Dining Room 9:30 a.m. —2:00 a.m. 9:30 a.m. — 2:00 a.m. Main Outdoor Dining Area 9:30 a.m. — 11:00 p.m.' 9:30 a.m. — 2:00 a.m. Ancillary Patio Area 9:30 a.m. —8:00 p.m. 9:30 a.m. — 8:00 p.m. '9:30 a.m.—2:00 a.m.allowed an additional 12 Sunday—Wednesday nights per year The amendment also includes the extension of the hours of the outdoor dining area by changing the opening hour from 10:00 a.m. to 9:30 a.m., daily; and the closing hour from 11:00 p.m. daily to 2:00 a.m. on Thursday nights and 12 other nights per year (e.g. holidays, boat parade, summer evenings, etc.) in addition to all Friday and Saturday nights (Condition No. 3). Staff has no objections with the proposed extension of the opening hour, since ambient noise levels are higher during the daytime hours and noise impacts and complaints have not been received during those hours. As with all uses, Woody's Wharf Conditional Use Permit October 13, 2015 Page 7 compliance with the City's noise ordinance is also required for all facets of the operation. In order to alleviate potential noise impacts created by the main outdoor dining area in the evenings, a draft condition of approval prohibits amplified music (background music) on the outdoor patio from being audible outside the patio at all times and it must cease at 10:00 p.m. Additionally, the doors to outdoor dining area must remain closed, except for ingress and egress, when live entertainment occurs on the interior of the restaurant. Should the City Council approve the amended use permit, the operator would be required to obtain an Operator License from the Police Department. The Operator License is a tool that the Police Department can utilize to enforce the conditions of approval of the use permit. Pursuant to Section 20.48.090 of the Zoning Code, the City Council must consider the following potential impacts upon adjacent or nearby uses when reviewing an application to allow late-hour operations and outdoor dining: 1. Noise from music, dancing, and voices associated with allowed outdoor uses and activities; 2. High levels of lighting and illumination; 3. Increased pedestrian and vehicular traffic activity during late and early morning hours; 4. Increased trash and recycling collection activities; 5. Occupancy loads of the use; and 6. Any other factors that may affect adjacent or nearby uses. Extending the hours of the outdoor dining area from 11:00 p.m. to 2:00 a.m. to include Thursday nights (and 12 other nights per year), could slightly increase traffic after 11:00 p.m. (current required closing hour). However, the location of the valet parking pick-up and drop-off area is shielded from the residences by the restaurant building, thereby mitigating noise impacts from this activity to residential uses across and along the Rhine Channel. The proposed use will not necessitate high levels of lighting or illumination and any outdoor lighting must conform to Zoning Code Section 20.30.070 (Outdoor Lighting). A temporary increase in traffic during late and early morning hours on weekends is expected along Newport Boulevard; however, this portion of roadway is not a major residential road, so disturbances to residents related to traffic are not expected to occur. Woody's Wharf Conditional Use Permit October 13, 2015 Page 8 Directly adjacent to the site is a new mixed use development, Newport Bay Marina (Dart Development), which is presently under construction and includes nine residential units within approximately 100 feet of the shared property line. (It should be noted that the original staff report indicated that the residential units were located approximately 100 feet to the south, which was an error.) See Attachment K which includes an exhibit submitted by Dart showing the Newport Bay Marina plans and the dwelling unit's proximity to the property line. The Woody's Wharf's outdoor patio, is located an additional 38 feet from the shared property line behind the main Woody's Wharf building. Additionally, upon completion of the Newport Bay Marina project, the residential units will also be separated by a 3-story, 35-foot high commercial wall adjacent to the shared property line. Restricting live entertainment to the interior, ceasing sound amplification at 10:00 p.m. on the outdoor dining area, and requiring that doors and windows be closed during live entertainment will help reduce noise impacts on the surrounding neighborhood. At all times, Woody's Wharf is required to comply with the noise standards identified in the Municipal Code. Parking The current parking requirement for Woody's Wharf is 40 parking spaces which are currently provided by 26 on-site spaces, the payment for 10 in lieu parking spaces, and the credit of 4 spaces for the boat docks. Six of the on-site spaces are tandem spaces approved with valet parking plan. The current approval allows the operator to utilize the valet parking service on an as-needed basis (to satisfy peak demand, special events, and holidays) and when dancing and/or live entertainment occurs. The Public Works Department has no objection to the valet parking plan as previously approved and depicted on the plans submitted. No changes to the parking requirement or management as approved by the Planning Commission are requested or recommended. Modified Conditions of Approval Several conditions of approval require modification to reflect the requested change in hours of operation, use of the main outdoor patio dining area, and the introduction of additional days for dancing, as well as clarifying language of the intent of several conditions. Please see the underlined/strike-out version of the proposed condition changes in Attachment B. Other proposed modifications are as follows: Woody's Wharf Conditional Use Permit October 13, 2015 Page 9 • Condition No. 5: The proposed modification states the Operator License will be subject to the same conditions of approval as the use permit. Staff supports this modification given the extensive number of conditions of approval that address late-hour operations. • Conditions No. 6 and 50: The proposed modifications state the closing hour of the kitchen is at the discretion of the applicant/operator and "happy hour" shall be allowed in conjunction with food service. Staff supports these modifications given that Condition No. 52 requires the applicant to comply with State requirements for a Type 47 Alcoholic Beverage Control (ABC) license and that the service of food is the principal use of the facility. • Condition No. 18. The proposed modification revises the language to state that the CUP runs with the land. Staff supports this revision as it provides added clarity to the validity of the CUP. • Condition No. 19. The proposed modification clarifies the intent of a standard condition of approval prohibiting the restaurant from operating as a bar, tavern or nightclub. Since the zoning code defines those uses as utilizing a Type 48 ABC License (On Sale General, Public Premise) staff supports this revision which helps clarify that the restaurant is allowed to have all envisioned uses including dancing and live entertainment. • Condition No. 24. The proposed modification clarifies that the use of cleaning solutions and the high pressure or steam cleaning devices is prohibited not only on the outdoor dining patio but all outdoor areas. Staff supports this language as it will help limit pollutant discharge into the bay. • Condition No. 33. The proposed modification clarifies that live entertainment is not permitted in any outdoor areas including the main outdoor dining patio and the easterly outdoor area. Staff supports this modification as it clarifies the locational prohibition of live entertainment. • Condition Nos. 45 and 58. The modified conditions specify the building code- sections, authority of the Chief Building Official and procedures that will be used to determine the occupancy load of the restaurant. Staff supports the modified conditions as they clarify that the occupancy load will be determined pursuant to the procedures and regulations applicable to this use. • Conditions No. 48 and 51: The proposed modification allows the applicant to hold events or activities by an outside promoter and collect admission after 10 p.m. on Thursday, Friday, and Saturday nights, as well as 12 other nights a year. Additionally, the applicant can collect admission after 10 p.m. on Thursday, Friday, and Saturday nights, as well as 12 other nights a year; the admission Woody's Wharf Conditional Use Permit October 13, 2015 Page 10 charge may include a minimum drink order. Staff supports the modification of Condition No. 48 and deletion of Condition No. 51 given that Condition No. 52 requires the applicant to comply with State requirements for a Type 47 ABC license and that the service of food is the principal use of the facility. • Condition No. 50. The proposed modification allows "happy hour' drink promotions with any type of food service; staff supports this change. • Condition No. 52. The proposed modification requires the establishment to comply with California Department of Alcoholic Beverage Control requirements for Type 47 ABC licenses. The requirement that alcohol sales not exceed food and retail sales has been deleted. • Condition No. 55: This condition has been revised to state that compliance with the City's sign code is required. • Conditions No. 59: The reference to the installation of accessibility improvements is proposed to be deleted due to Condition No. 15 which states that the applicant will comply with all applicable rules, regulations, and laws. Staff supports this change. Use Permit Findings Pursuant to Section 20.52.020.F of the Zoning Code, the Planning Commission must make the following findings in order to approve a conditional use permit. Each finding is detailed in the attached draft resolution (Attachment A): 1. The use is consistent with the General Plan and any applicable Specific Plan; The Mixed-Use Water Related (MU-W2 and MU-W) land use designations of the General Plan and Coastal Land Use Plan are intended to encourage water related uses intermixed with general commercial, visitor-serving commercial and residential uses. The operation of a "Food Service, Late Hours' use with alcoholic beverage sales is consistent with the purpose and intent of this land use designation and complementary to the surrounding residential uses. The facility is not located in a specific plan area. 2. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code; The use is also consistent with the Mixed-Use Water Related (MU-W2) Zoning District. The MU-W2 district applies to waterfront properties in which marine-related uses may be intermixed with general commercial, visitor-serving commercial and residential dwelling units on the upper floors. Food Service uses can be expected to be found in Woody's Wharf Conditional Use Permit October 13, 2015 Page 11 this area and similar locations and are complementary to the surrounding commercial and residential uses. 3. The design, location, size, operating characteristics of the use are compatible with the allowed uses in the vicinity; The proposed conditions of approval related to the operational changes will help minimize potential conflicts with nearby residential and commercial land uses. The proposed project will comply with Zoning Code standards for eating and drinking establishments. Valet parking is required during live entertainment and will be used at the discretion of the operator during peak business periods to optimize use of the on- site parking lot. There are no exterior changes proposed to the outside of the building. 4. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities; and Woody's Wharf has existed in this location since the 1960s. The project site has proven to be physically suitable in size to accommodate the restaurant use and to be an appropriate location. The Traffic Engineer has previously reviewed the configuration of the parking lot, as well as the valet parking plan, and has determined the parking lot design functions safely and emergency access is provided. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. The project has been reviewed and conditioned to ensure that potential conflicts with the surrounding land uses are minimized to the extent possible to maintain a healthy environment for both residents and businesses. Adequate parking, including the requirement for valet parking during live entertainment, will be provided for the restaurant at all times. To ensure that the operational changes do not create a detrimental impact during late hours, the operator will be required to secure an Operator License and will be required to take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance to areas surrounding the establishment and adjacent properties during business hours. Should the operator be unable to abide by the conditions of approval or prevent objectionable conditions from Woody's Wharf Conditional Use Permit October 13, 2015 Page 12 occurring, the Police Department will have the authority to modify, suspend, or revoke the operator's ability to maintain late-hour operations. Correspondence Received The City has received multiple letters in opposition to the proposed amendment and expressing concern about the requested increased hours of use for the outdoor patio, and the increased days when dancing is allowed. This includes correspondence received from representatives of the Newport Bay Marina mixed-use project (Dart), the 28th Street Marina Home Owners Association, and others. Letters have also been received in support of the applicant's request. Correspondence, except for the Newport Bay Marina related materials, is included as Attachment J. Newport Bay Marina (Dart Development) Dart has submitted multiple e-mails, documents, and a noise study prepared by RS Acoustics indicating their opposition to the proposal because of the late-hour noise generated by Woody's Wharf. Dart contends that the noise analysis prepared by Mestre Greve Associates dated January 8, 2013 (Attachment No. CC 5) is outdated and a new analysis should be prepared to analyze their development. The Dart correspondence, including the RS Acoustics noise study, is included as Attachment K. The purpose of the 2013 Mestre Greve report was to document the existing ambient noise levels in the area and Woody's Wharf's contribution to the noise levels. That analysis did take measurements adjacent to the existing 28th Street Marina residences, since it was considered a sensitive receptor. The Newport Bay Marina site was vacant at the time, and therefore only one measurement was taken adjacent to the shared property line with Woody's Wharf. As stated previously, the report concluded that closing the outdoor patio area had no effect on the noise levels, and the noise created on the outdoor patio area is negligible. RS Acoustics recently took sound measurements in the evening at the shared property line with Woody's Wharf and at the future location of residential balconies and decks (Attachment K). The report documented noise levels on the Newport Bay Marina property that exceed the City's noise standards, and attributed the high noise levels to Woody's Wharf. Dart is concerned that these late-hour noise levels will negatively impact the future residents. In 2006, the Newport Bay Marina project went through the review and public hearing process, and it was recognized that the project was bordered by existing commercial Woody's Wharf Conditional Use Permit October 13, 2015 Page 13 developments, including Woody's Wharf, which had a closing hour of 11:00 p.m. for the outdoor patio. As a result of public comments, the Planning Commission recognized the neighboring restaurants and boatyards as existing businesses, and determined that it was very important for the Newport Bay Marina project to include design features and conditions of approval to mitigate potential land use conflicts. The following requirements are specifically related to the Newport Bay Marina's proximity to Woody's Wharf: • Building K (Re-named Building H, directly adjacent to Woody's Wharf) — The building was modified with the removal of all windows on its northerly side. That portion of the building is identified for office use on the second and third floors and includes a loading space, commercial space, and residential garages on the first floor. The building footprint measures 13 feet, 2.5 inches in width and is 35 feet high. The building provides a buffer between the Woody's Wharf property line and the closest dwelling unit. See photo below that shows the wall currently under construction. • Condition of approval No. 62 requires the applicant to provide a disclosure statement at the time of the purchase contract advising prospective purchasers of the potential noxious characteristics of the nearby boatyard and restaurant uses that could adversely affect the enjoyment of the property. The statement is required to be acceptable by the City Attorney in consultation with the adjacent owners and Community Development Director. The disclosure statement would be included CC&R's and recorded at the County Recorder's office. • Condition of approval No. 72 requires the construction of a 12-foot high wall, consisting of 8-foot solid masonry and 4-foot clear glass/plexi-glass, to provide Woody's Wharf Conditional Use Permit October 13, 2015 Page 14 sound attenuation for the entire length of the shared property line with Woody's Wharf. That wall has not yet been constructed. A rendering of this building elevation is included as Attachment I. Staff recognizes Dart's concerns that even with the building location and design features, the sound wall, and other conditions of approval there may be unacceptable noise levels from Woody's Wharf in the future that will impact the residents of Newport Bay Marina. Staff notes that the operation of Woody's Wharf must be conducted in compliance with all the City's Municipal Code requirements, including noise, and all applicable permits. Failure to do so will result in appropriate administration citations, and potentially the modification and/or revocation of the applicant's permits by the City. Alternatives The City Council may choose to modify the applicant's proposed request or conditions of approval. Should City Council wish to deny the applicant's request, staff will draft the appropriate resolution for consideration at a later City Council public hearing. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 Class 1 (Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3. This exemption applies to facilities where it can be demonstrated the project involves negligible or no expansion of the existing use. The proposed project does not include building additions or alterations. The change in hours of operation including additional days when live entertainment and dancing area allowed and other business related operational conditions of approval do not constitute the expansion of use pursuant to CEQA, because it has no potential to have a significant effect on the environment. NOTICING: Notice of this application was published in the Daily Pilot, mailed to all owners of property within 300 feet of the boundaries of the site (excluding intervening rights-of- way and waterways) including the applicant and posted on the subject property at least 10 days prior to the original public hearing date of September 22, 2015, consistent with the provisions of the Municipal Code. Additionally, the item appeared on the agenda for that meeting, which was posted at City Hall and on the City website. Since the public hearing was continued specifically to October 13, 2015, no additional public notice was required. Woody's Wharf Conditional Use Permit October 13, 2015 Page 15 ATTACHMENTS: Attachment A— Draft Resolution for Approval with Findings and Conditions Attachment B — Modified Conditions of Approval Attachment C — Planning Commission Resolution 1988 (UP2011-010, Current CUP) Attachment D — Live Entertainment Permit, Woody's Wharf Restaurant Attachment E — Noise Study (2013) Attachment F — Proposed Late-Hour Floor Plan Attachment G — Project Plans- Site Plan and Floor Plan Attachment H — Vicinity Map Attachment I — Newport Bay Marina Building Elevation Attachment J — Correspondence Received Attachment K— Newport Bay Marina Correspondence (Dart) Attachment A Draft Resolution for Approval with Findings and Conditions 16-16 RESOLUTION NO. 2015- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING AN AMENDMENT TO CONDITIONAL USE PERMIT NO. UP2011-010 (AND RE-NUMBER AS UP2015-037) TO MODIFY OPENING HOURS AND CLOSING HOURS; DESIGN AND OPERATIONAL CONDITIONS OF APPROVAL RELATED TO THE OUTDOOR DINING AREA PATIO; DAYS PATRON DANCING IS ALLOWED; USE OF THE EASTERLY OUTDOOR PATIO; AND MODIFYING OPERATIONAL CONDITIONS OF APPROVAL AT AN EXISTING EATING AND DRINKING ESTABLISHMENT LOCATED AT 2318 NEWPORT BOULEVARD (PA2015- 158). WHEREAS, the subject property is located within the Mixed Use — Water Related Zoning District (MU-W2) and the General Plan Land Use Element category is also Mixed Use —Water Related District (MU-W2); WHEREAS, the subject property is located within the coastal zone. The Coastal Land Use Plan category is Mixed Use —Water Related District (MU-W); WHEREAS, a public hearing before the Planning Commission was held on September 5, 2013, in the City Hall Council Chambers, 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code (NBMC). Following consideration of all evidence, both written and oral, the Planning Commission at this meeting approved: 1) extending the opening hour of the restaurant and outdoor dining area from 11:00 a.m. to 10:00 a.m., daily; 2) extending the closing hour of the outdoor dining area from 11:00 p.m. to 2:00 a.m. on Friday and Saturday nights; 3) the introduction of patron dancing within the interior of the restaurant on Friday and Saturday nights; 4) removing tables and chairs within the outdoor dining area on Friday and Saturday nights; 5) the use of the valet parking on an as-needed basis; and 6) waiver of a portion of the required parking; WHEREAS, on September 9, 2013, former Council Member Henn filed a written call for review of the Planning Commission's decision with the City Clerk. On October 8, 2013, the City Council held a public hearing on Respondent Henn's call for review. Following the public hearing, on November 12, 2013, the City Council adopted Resolution 2013-75, that allowed for an earlier opening time for the restaurant, relaxed the valet parking requirements, and approved a variance to construct the enclosure over the outdoor dining area, but in all other respects, overturned the Planning Commission decision, including allowing patron dancing, allowing the outdoor dining area to be open -1- 16-17 until 2:00 a.m., and allowing the removal of tables and chairs from any section of the restaurant after 10:00 p.m.; WHEREAS, on November 13, 2013, Woody's Wharf filed a petition and complaint in the Superior Court for the State of California, County of Orange in an action entitled Woody's Group, Inc., dba Woody's Wharf, et al., v. City of Newport Beach, et al., Case No. 30-2013-00687091, challenging the City Council's November 12, 2013 decision; WHEREAS, on May 19, 2014, the Honorable Judge Derek Hunt issued an order denying Woody's Wharf challenge and upholding the City Council's November 12, 2013 decision; WHEREAS, on January 29, 2015, the California Court of Appeal, Fourth Appellate District, Division 3, reversed Judge Hunt's decision and reinstated the Planning Commission's September 5, 2013 decision; WHEREAS, Woody's Wharf has requested the following changes in the operational characteristics of the existing restaurant: 1) to extend the opening hour of the restaurant from 10:00 a.m. to 9:30 a.m., daily; 2) to extend the closing hour of the restaurant's outdoor dining area from 11:00 p.m. to 2:00 a.m., on Thursday nights as well as up to twelve (12) additional nights per year, which are in addition to the permitted 2:00 a.m. closing hour on Friday and Saturday nights; 3) to allow patron dancing within the interior of the restaurant on Thursday nights and up to twelve (12) additional nights per year, which are in addition to the permitted patron dancing on Friday and Saturday nights; 4) to allow the easterly outdoor area, adjacent to the boat dock ramp, to be used by patrons for smoking, eating, and/or drinking on a daily basis until 8:00 p.m. daily; 5) to delete conditions of approval related to the outdoor dining area patio cover requirement; and 6)to modify and/or delete various operational conditions of approval related to the restaurant's operations; WHEREAS, a public hearing before the City Council was held on October 13, 2015, in the City Hall Council Chambers, 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code (NBMC). Evidence, both written and oral, was presented to, and considered by, the City Council at this meeting. The request before the City Council did not include sustaining the variance for the outdoor dining patio area (Variance No. VA2013-006) as approved by the Planning Commission. Therefore, the variance will expire when not implemented by the applicant. NOW, THEREFORE, the City Council of the City of Newport Beach hereby resolves as follows: -2- 16-18 Section 1: In accordance with NBMC Sections 20.48.030 (Alcohol Sales) and 20.52.020 (Conditional Use Permit), the following findings and facts in support of such findings are set forth: Finding: A. The use is consistent with the purpose and intent of Section 20.48.030 (Alcohol Sales) of the Zoning Code. Facts in Support Finding: A-1. The project has been reviewed and conditioned to ensure that the purpose and intent of NBMC Section 20.48.030 (Alcohol Sales) is maintained and that a healthy environment for residents and businesses is preserved. The service of alcoholic beverages is intended for the convenience of customers. Operational conditions of approval relative to the sale of alcoholic beverages will ensure compatibility with the surrounding use and minimize alcohol-related impacts. A-2. Pursuant to NBMC Chapter 5.25, the project has been conditioned to require that the applicant, as well as any future operators, obtain an Operator License to ensure the establishment is operated in a safe manner and compatible with the neighborhood. A-3. The subject property is located within a mixed use district developed primarily with commercial uses. Across the Rhine Channel, the closest residential district is approximately 570 feet away. To the north, the closest residential use is approximately 200 feet away and residential uses associated with the future Newport Bay Marina Project will be approximately 100 feet away. To the west, the nearest residential uses are 230 feet away; and to the north the nearest residential uses are approximately 200 feet away. The nearest park is the public beach adjacent to the West Ocean Front Boardwalk over 650 feet from the subject property. There are no day care centers, recreation facilities, places of religious assembly, or schools in proximity to the subject property. In accordance with NBMC Section 20.52.020, eating and drinking establishments classified as "Food Service, Late Hours" require the approval of a Conditional Use Permit within the Mixed-Use Water Related (MU-W2) Zoning District. In accordance with NBMC Section 20.52.020(F), the following findings and facts in support of such findings are set forth: Finding: B. The use is consistent with the General Plan and any applicable specific plan. -3- 16-19 Facts in Support of Finding: B-1. The Mixed-Use Water Related (MU-W2 and MU-W) land use designations of the General Plan and Coastal Land Use Plan are intended to encourage water related uses intermixed with general commercial, visitor-serving commercial and residential uses. The operation of a "Food Service, Late Hours" use with alcoholic beverage sales is consistent with the purpose and intent of this land use designation. B-2. Food service uses including those with live entertainment and dancing are expected to be located in commercial areas, and are complementary to the existing commercial and residential uses in the area. Such uses are frequented by visitors, tenants of the nearby commercial uses, and residents. B-3. The subject property is not part of a specific plan area. Finding: C. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code. Facts in Support of Finding: C-1. The subject property is located in the Mixed Use — Water Related Zoning District (MU-W2), and eating and drinking establishments classified as "Food Service, Late Hours" require the approval of a Conditional Use Permit. Food Service including those with late hours and live entertainment can be expected to be found in this area and similar locations and are complementary to the surrounding commercial and residential uses. C-2. As conditioned, the project will comply with Zoning Code standards for eating and drinking establishments. Conditions are included related to on-sale alcoholic beverage activities, including the training of personnel, and the provision of security personnel while live entertainment is offered. C-3. Pursuant to NBMC Chapter 5.25, the applicant and any future operator of the eating and drinking establishment is required, to obtain an Operator License from the Newport Beach Police Department (NBPD). Finding: D. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity. Facts in Support of Finding: -4- 16-20 D-1. The project has been reviewed and conditioned to ensure that potential conflicts with the surrounding land uses are minimized to the extent possible to maintain a healthy environment for both residents and businesses. D-2. In order to reduce the potential impact on neighboring properties, a condition of approval is included that prohibits recorded music or other types of sound amplification within the outdoor dining patio area after 10:00 p.m. daily. Additionally, conditions of approval require the doors exiting the building to the outdoor dining patio area to remain closed whenever live entertainment is performed inside the building after 10:00 p.m., except when persons are entering and exiting the building. D-3. The location of the valet parking pick-up and drop-off area is shielded from the residences by the restaurant building, thereby mitigating noise impacts from this activity to residential uses across and along the Rhine Channel. D-4. Adequate number of parking spaces are available on-site and there is available public parking in municipal lots located in the vicinity. The use of the valet parking service when live entertainment occurs and on an as-needed basis will maximize on-site utilization of the parking lot and in the case that the lot is full, parking is available in the municipal metered parking lot across the street (the meters are not in effect after 6:00 p.m. daily). Finding: E. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities. Facts in Support of Finding: E-1. This is an eating and drinking establishment that has existed in this location since the 1960's. The project site has proven to be physically suitable in size to accommodate the restaurant use. E-2. The project site is located on Newport Bay between 24th and 26th Street overlooking the Rhine Channel and is surrounded by similar commercial uses located to the north (next door), and the northwest of the use. This is an appropriate location for an eating and drinking establishment. The restaurant use is complementary to the existing commercial uses in the area, as well as convenient to serve the residential uses located to the north and east across the Rhine Channel in relation to the project site. -5- 16-21 E-3. The Traffic Engineer has previously reviewed the configuration of the parking lot, as well as the valet parking plan, and has determined the parking lot design functions safely and does not prevent emergency vehicle access to the establishment. E-4. The site is currently served by public services and utilities. Finding: F. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Facts in Support of Finding: F-1. Although the establishment will operate late hours and offer live entertainment and dancing, the project has been reviewed and appropriately conditioned to ensure the continued operation of the establishment as a bona fide eating and drinking establishment based on the approval of the Type 47 Alcoholic Beverage Control license. F-2. The applicant has operated the existing eating and drinking establishment in this location since 2002, and is required to proactively control noise generated by patrons of the restaurant. The operator will be required to obtain an Operator License from the NBPD. The Operator License will provide for enhanced control of noise, loitering, litter, disorderly conduct, parking/circulation, and other potential disturbances resulting from the existing establishment, and will provide the NBPD with means to modify, suspend, or revoke the operator's ability to maintain late- hour operations if an objectionable condition occur. Section 2: The City Council of the City of Newport Beach hereby approves Amendment No. 1 to Use Permit No. UP2011-010 (Re-numbered to UP2015-158). The business owner has requested the following changes in the operational characteristics of the existing restaurant: 1) to extend the opening hour of the restaurant from 10:00 a.m. to 9:30 a.m., daily; 2) to extend the closing hour of the restaurant's outdoor dining area from 11:00 p.m. to 2:00 a.m., on Thursday nights as well as up to twelve (12) additional nights per year, which are in addition to the permitted 2:00 a.m. closing hour on Friday and Saturday nights; 3) to allow patron dancing within the interior of the restaurant on Thursday nights and up to Twelve (12) additional nights per year, which are in addition to the permitted patron dancing on Friday and Saturday nights; 4) to allow the easterly outdoor area, adjacent to the boat dock ramp, to be used by patrons for smoking, eating, and/or drinking on a daily basis until 8:00 p.m.; 5) to delete conditions of approval related to the outdoor dining area patio cover requirement; and 6) to modify and/or delete various operational conditions of approval related to the -6- 16-22 restaurant's operations as included in Exhibit A, which is attached hereto and incorporated by reference. This resolution supersedes the Conditional Use Permit No. UP2011-010 as authorized by Planning Commission Resolution No. 1922 which upon vesting of the rights authorized by this Amendment No. 1 to Conditional Use Permit No. UP2011-010 (re-numbered as UP2015-158) shall become null and void. Section 3: This project has been determined to be categorically exempt under Section 15301, of the California Environmental Quality Act (CEQA) Guidelines — Class 1 (Existing Facilities). This exemption applies to facilities where it can be demonstrated the project involves negligible or no expansion of the existing use. The proposed project does not include building additions or alterations. The change in hours of operation, including additional days when live entertainment and dancing are allowed and other business- related operational conditions of approval, do not constitute an expansion of use pursuant to CEQA. Section 4: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Section 5: The recitals provided above are true and correct and are incorporated into the substantive portion of this resolution. Section 6: The Mayor shall sign and the City Clerk shall certify the vote adopting passage of this resolution. ADOPTED this 13th day of October, 2015. By: Edward D. Selich, Mayor ATTEST: Leilani I. Brown, City Clerk Attachment: Exhibit A: Conditions of Approval -7- 16-23 EXHIBIT "A" CONDITIONS OF APPROVAL 1. The development shall be in substantial conformance with the approved site plan, floor plans, and building elevations stamped and dated with the date of this approval (except as modified by applicable conditions of approval). Prior to implementation of the activities approved by this application, the applicant shall submit a revised floor plan for approval by the Community Development Director that reflects the limitations and restrictions imposed by the conditions of approval. 2. Conditional Use Permit No. UP2011-010 shall expire unless exercised within 24 months from the date of approval as specified in Section 20.54.060 of the Newport Beach Municipal Code (NBMC), unless an extension is otherwise granted. 3. The hours of operations of the restaurant shall be limited to between 9:30 a.m., and 2:00 a.m., daily. The hours of the outdoor dining area are limited to 9:30 a.m. and 11:00 p.m. daily, however, on Thursdays, Fridays and Saturdays, as well as twelve (12) other nights throughout the year, the closing hour may be extended to 2:00 a.m. The applicant/operator shall notify the City's Community Development Director, or his or her designee, in writing at least twenty-four (24) hours prior to extending the closing hour of the outdoor dining area for each of the twelve (12) other nights throughout the year. The easterly outdoor area, adjacent to the boat dock ramp, is permitted to be used by customers for smoking, eating, and/or drinking on a daily basis until 8:00 p.m. The applicant/operator, including any future operator, shall secure and maintain an Operator License issued by the Chief of Police, pursuant to Chapter 5.25 of the NBMC. In no case shall the eating and drinking establishment be permitted to operate beyond the hour of 2:00 a.m., daily. 4. All doors and windows of the interior of the eating and drinking establishment shall remain closed whenever live entertainment occurs after 10:00 p.m., except for the ingress and egress of patrons and employees. Doors shall not be propped open, or remain open longer than necessary, to allow for the ingress and egress of patrons and employees. 5. The Operator License required to be obtained pursuant to Condition No. 3 and Chapter 5.25 will be subject to the same conditions of approval in this Use Permit that are intended to regulate and control potential late-hour nuisances associated with the operation of the establishment. 6. Full meal service shall be provided; however the closing time of the kitchen will be at the discretion of the applicant/operator. -8- 16-24 7. The outdoor dining area shall be used in conjunction with the eating and drinking establishment. 8. The outdoor dining area shall be limited to 709 square feet in area. 9. The outdoor dining area shall be limited to a maximum of 66 seats, including disabled seats/table space, consistent with the floor plans as approved by Plan Check set of plans PC 1141-2011. The seating and dining in the outdoor dining patio shall be limited to dining table height (approximately 30 inches) and the use of the elevated counters and barstools is prohibited. Removal of dining tables and chairs shall be prohibited on Sundays, Mondays, Tuesdays and Wednesdays. 10. All employees shall park on-site or in the municipal parking lots in the vicinity. 11. The net public area of the interior portion of the eating and drinking establishment shall not exceed 1,173 square feet and the outdoor dining area shall not exceed 709 square feet for a total of 1,882 square feet of net public area. 12. A minimum of 26 parking spaces shall be provided on-site and payment of in lieu parking fees for 10 spaces for the operation of the eating and drinking establishment. A total of 40 parking spaces shall be provided on-site and by payment of in lieu fees (annually for four parking spaces) for all hours of operation of the establishment (one parking space for each 40 square feet of net public area, 1,589 sq. ft.). Valet parking service shall be provided whenever live entertainment occurs and on an as-needed basis. 13. The applicant/operator shall conspicuously post and maintain signs at all outdoor dining, waiting, smoking and parking areas indicating to patrons the proximity of the restaurant and public dock and boat slip areas to the residential areas, requesting patrons; "Be courteous and respectful of our residential neighbors while outside the establishment." 14. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 15. The applicant/operator shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this Conditional Use Permit. 16. The applicant/operator shall maintain a copy of the most recent City permit conditions of approval on the premises and shall post a notice that these are available for review on the premises. The posted notice shall be signed by the permittee. -9- 16-25 17. This approval was based on the particulars of the individual case and does not in and of itself or in combination with other approvals in the vicinity or Citywide constitute a precedent for future approvals or decisions. 18. This Conditional Use Permit shall run with the land; however, this Conditional Use Permit may be modified or revoked by the City Council or Planning Commission should they determine that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 19. Approval of Conditional Use Permit No. 2011-010 is for the operation of an eating and drinking establishment defined as "Food Service, Late Hours" per Title 20 of the NBMC, and does not permit or authorize the use or operation of a bar, tavern, cocktail lounge, nightclub or commercial recreational entertainment venue. This condition is not intended to supersede any activity explicitly authorized in this Conditional Use Permit (e.g., dancing, consuming alcoholic beverages, etc.). 20. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to this Conditional Use Permit or the processing of a new Conditional Use Permit. 21. The type of alcoholic beverage license issued by the California Board of Alcoholic Beverage Control shall be a Type 47 in conjunction with the service of food as the principal use of the facility. Any upgrade in the alcoholic beverage license shall be subject to the approval of an amendment to this application, and may require the approval of the Planning Commission. 22. All landscaped areas shall be maintained in a healthy and growing condition and shall receive regular pruning, fertilizing, mowing and trimming. All landscaped areas shall be kept free of weeds and debris. All irrigation systems shall be kept operable, including adjustments, replacements, repairs, and cleaning as part of regular maintenance. 23. Water should not be used to clean paved surfaces such as sidewalks, driveways, parking areas, etc. except to alleviate immediate safety or sanitation hazards. 24. The washing of the outdoor dining patio or any other outdoor area with any cleaning solutions or the use of high pressure or steam cleaning devices is prohibited. 25. Lighting shall be in compliance with applicable standards of the Zoning Code. The site shall not be excessively illuminated based on the luminance recommendations of the Illuminating Engineering Society of North America, or, if -10- 16-26 in the opinion of the Community Development Director, the illumination creates an unacceptable negative impact on surrounding land uses or environmental resources. The Community Development Director may order the dimming of light sources or other remediation upon finding that the site is excessively illuminated. 26. All noise generated by the existing eating and drinking establishment use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher: Between the hours of 7: Between the hours of 00 a.m. and 10: 00 p. 10: 00 p. m. and 7: 00 M. a. m. Measured at the property 65 dBA 60 dBA line of commercially zoned property: Measured at the property 55 dBA 50 dBA line of residentially zoned property: Measured in the interior of a 45 dBA 40 dBA residential structure: 27. Deleted *. 4V 28. Deleted 29. The applicant/operator of the facility shall be responsible for and shall actively control any noise generated by the subject facility including, but not limited to, noise generated by patrons, food service operations, and mechanical equipment. 30. Should the property be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing agent. 31. Live entertainment shall be allowed in the interior of the eating and drinking establishment in conjunction with the operator obtaining and maintaining a live entertainment permit from the City. In conjunction with the approval of this Use Permit, the operator shall amend the existing live entertainment permit consistent with the conditions of approval and the authorized operational changes. 32. No outside paging system or loudspeaker device shall be used in conjunction with this establishment. -11- 16-27 33. No live entertainment shall be permitted in the outdoor dining area or any other outdoor area. Recorded music or other types of sound amplification within the outdoor areas shall only be audible to the audience within this area, and shall cease after the hour of 10:00 p.m. daily. 34. Dancing shall be allowed on the premises on Thursdays, Fridays, and Saturdays, as well as twelve (12) other nights throughout the year. The applicant/operator shall notify the City's Community Development Director, or his or her designee, in writing at least twenty-four (24) hours prior to allowing dancing for each of the twelve (12) other nights throughout the year. 35. The applicant/operator shall provide licensed security personnel while offering live entertainment and/or dancing. A comprehensive security plan for the permitted uses shall be submitted for review and approval by the Newport Beach Police Department (NBPD). The procedures included in the plan and any recommendations made by the NBPD shall be implemented and adhered to for the life of the Conditional Use Permit. 36. Trash receptacles for patrons shall be conveniently located both inside and outside of the establishment, however, not located on or within any public property or right-of-way. 37. The exterior of the business shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. 38. The applicant/operator shall ensure that the trash dumpsters and/or receptacles are maintained to control odors. This may include the provision of either fully self- contained dumpsters or periodic steam cleaning of the dumpsters, if deemed necessary by the Code Enforcement Division. Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14, including all future amendments (including Water Quality related requirements). 39. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10:00 p.m. and 8:00 a.m. the following morning, unless otherwise approved by the Community Development Director, and may require an amendment to this Use Permit. 40. Storage outside of the building in the front or at the rear of the property shall be prohibited, with the exception of the required trash container enclosure. 41. No recreational vehicles, boats, food trucks, portable street kitchens or similar vehicles shall be stored at any time at the subject site. -12- 16-28 42. A Special Events Permit is required for any event or promotional activity outside the normal operational characteristics of the approved use, as conditioned, or that would attract large crowds, involve the sale of alcoholic beverages, include any form of on—site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. 43. Kitchen exhaust fans shall be installed/maintained in accordance with the Uniform Mechanical Code. The issues with regard to the control of smoke and odor shall be directed to the South Coast Air Quality Management District. 44. All exits shall remain free of obstructions and available for ingress and egress at all times. 45. The occupancy load shall be set or established pursuant to Section 1004, et.seq., of the California Building Code. The determination should initially be made by the building official of the City of Newport Beach whose decision is appealable to the Building and Fire Board of Appeals in accordance with Chapter 15.80 of the Newport Beach Municipal Code. The decision of the Building and Fire Appeals Board is subject to judicial review pursuant to Code of Civil Procedure Section 1094.5. 46. The use of private (enclosed) "VIP" rooms or any other temporary or permanent enclosures separate from public areas are prohibited. 47. All owners, managers and employees selling, serving or giving away alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for selling alcoholic beverages. The certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service or other certifying/licensing body, which the State may designate. The establishment shall comply with the requirements of this section within 180 days of the issuance of the certificate of occupancy. Records of each owner's, manager's and employee's successful completion of the required certified training program shall be maintained on the premises and shall be presented upon request by a representative of the City of Newport Beach. 48. Any event or activity staged by an outside promoter or entity, where the restaurant owner or his employees or representatives share in any profits, or pay any percentage or commission to a promoter or any other person based upon money collected as a door charge, cover charge or any other form of admission charge, including minimum drink orders or sale of drinks is only permitted after 10 p.m. on Thursday, Friday, and Saturday nights, as well as twelve (12) other nights throughout the year. Additionally, the applicant/operator may collect a door charge, cover charge, or any other form of admission charge, including minimum drink orders or sale of drinks only after 10 p.m. on Thursday, Friday, and Saturday nights, as well as twelve (12) other nights throughout the year. -13 16-29 49. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the license. 50. Any "happy hour" type of reduced price alcoholic beverage promotion shall only be allowed in conjunction with food service. There shall be no reduced price alcoholic beverage promotion after 10:00 p.m. 51. Deleted 52. The licensee shall comply with the California Board of Alcoholic Beverage Control Requirements for a Type 47 alcoholic beverage control license, including, but not limited to, the service of food shall be the principal use of the facility. 53. No on-site radio, television, video, film or other media broadcasts from the establishment that includes the service of alcoholic beverages shall be permitted without first obtaining an approved Special Event Permit issued by the City. This prohibition of media broadcasts includes recordings to be broadcasted at a later time. 54. All signs shall be in conformance with the provisions of Chapter 20.42 of the Newport Beach Municipal Code. 55. Applicant/operator shall comply with the City's sign code. 56. No games or contests requiring or involving the consumption of alcoholic beverages shall be permitted. 57. Deleted 58. Occupant Load shall be determined by the Chief Building Official, based upon the California Building Code and Newport Beach Municipal Code. 59. Deleted 60. Deleted 61. Deleted 62. Deleted 63. Deleted 64. To the fullest extent permitted by law, any operator exercising any rights under this permit shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and -14- 16-30 against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses including without limitation, attorney' s fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City' s approval of the subject restaurant facility (currently operating as Woody's Wharf Restaurant) including, but not limited to, the Use Permit No. 2011-010 This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by operator, City, and/or the parties initiating or bringing such proceeding. The operator shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The operator shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. -15 16-31 Attachment B Modified Conditions of Approval 16-32 ATTACHMENT CC 2 Modified Conditions of Approval 1. The development shall be in substantial conformance with the approved site plan, floor plans, and building elevations stamped and dated with the date of this approval (except as modified by applicable conditions of approval). Prior to implementation of the activities approved by this application, the applicant shall submit a revised floor plan for approval by the Community Development Director that reflects the limitations and restrictions imposed by the conditions of approval. 2. Conditional Use Permit No. UP2011-010 and Varian^^ Nn. "^'^" 009 shall expire unless exercised within 24 months from the date of approval as specified in Section 20.54.060 of the Newport Beach Municipal Code (NBMC), unless an extension is otherwise granted. 3. The hours of operations of the restaurant shall be limited to between 9:3010-09 a.m., and 2:00 a.m., daily. The hours of the outdoor dining area are limited to 9:3019:08 a.m. and 11:00 p.m. daily, however, on Thursdays, Fridays and Saturdays, as well as twelve (12) other nights throughout the year, the closing hour may be extended to 2:00 a.m. The applicant/operator shall notify the City's Community Development Director, or his or her designee, in writing at least twenty-four(24) hours prior to extending the closing hour of the outdoor dining area for each of the twelve (12) other nights throughout the year. The easterly outdoor area, adjacent to the boat dock ramp, is permitted to be used by customers for smokinq, eating, and/or drinking on a daily basis until 8:00 p.m. The applicant/operator, including any future operator, shall secure and maintain an Operator License issued by the Chief of Police, pursuant to Chapter 5.25 of the NBMC. In no case shall the eating and drinking establishment be permitted to operate beyond the hour of 2:00 a.m., daily. 4. All doors and windows of the interior, including the pati^ ^^y•^; f the eating and drinking establishment shall remain closed whenever live entertainment occurs after 10:00 p.m., except for the ingress and egress of patrons and employees. Doors shall not be propped open, or remain open longer than necessary, to allow for the ingress and egress of patrons and employees. 5. The Operator License required to be obtained pursuant to Condition No. 3 and Chapter 5.25 ffw will be subject to ^-'dWep^' ^^^'r^-nqeFo FP'44rtivp rapd4'9^; the some conditions of approval in this Use Permit that are intended to regulate and control potential late-hour nuisances associated with the operation of the establishment. 6. Full meal service shall be provided,• however the closing time of the kitchen will be at the discretion of the applicant/operator. and^••^O^bk er erder ng until 10 ^ and an Gbbre ated cae6ing. 7. The outdoor dining area shall be used in conjunction with the eating and drinking establishment. 8. The outdoor dining area shall be limited to 709 square feet in area. 9. The outdoor dining area shall be limited to a maximum of 66 seats, including disabled seats/table space, consistent with the floor plans as approved by Plan Check set of plans PC 1141-2011. The seating and dining in the outdoor dining patio shall be limited to dining table height (approximately 30 inches) and the use of the elevated counters and barstools is prohibited. Removal of dining tables and chairs shall be prohibited onb^tnR:.R,^^^^^ Sundays. Mondays, Tuesdays and t^Wednesdays. 10. All employees shall park on-site or in the municipal parking lots in the vicinity. 16-33 11. The net public area of the interior portion of the eating and drinking establishment shall not exceed 1,173 square feet and the outdoor dining area shall not exceed 709 square feet for a total of 1,882 square feet of net public area. 12. A minimum of 26 parking spaces shall be provided on -site and payment of in lieu parking fees for 10 spaces for the operation of the eating and drinking establishment. A total of 40 parking spaces shall be provided on-site and by payment of in lieu fees(annually for four parking spaces) for all hours of operation of the establishment(one parking space for each 40 square feet of net public area, 1,589 sq. ft.). Valet parking service shall be provided whenever live entertainment occurs and on an as-needed basis. 13. The applicant/operator shall conspicuously post and maintain signs at all outdoor dining, waiting, smoking and parking areas indicating to patrons the proximity of the restaurant and public dock and boat slip areas to the residential areas, requesting patrons; 'Be courteous and respectful of our residential neighbors while outside the establishment". 14. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 15. The applicant/operator shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this Conditional Use Permit. 16. The applicant/operator shall maintain a copy of the most recent City permit conditions of approval on the premises and shall post a notice that these are available for review on the premises.The posted notice shall be signed by the permittee. 17. This approval was based on the particulars of the individual case and does not in and of itself or in combination with other approvals in the vicinity or Citywide constitute a precedent for future approvals or decisions. 18. This Conditional Use Permit shall run with the land; however, this Conditional Use Permit aad "tee may be modified or revoked by the City Council or Planning Commission should they determine that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 19. Approval of Conditional Use Permit No. 2011-010 is for the operation of an eating and drinking establishment defined as "Food Service, Late Hours" per Title 20 of the NBMC, and does not permit or authorize the use or operation of a bar, tavern, cocktail lounge, nightclub or commercial recreational entertainment venue. This condition is not intended to supersede any activity explicitly authorized in this Conditional Use Permit (e.g., dancing, consuming alcoholic beverages, etc.). 20. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to this Conditional Use Permit or the processing of a new Conditional Use Permit. 21. The type of alcoholic beverage license issued by the California Board of Alcoholic Beverage Control shall be a Type 47 in conjunction with the service of food as the principal use of the facility. Any upgrade in the alcoholic beverage license shall be subject to the approval of an amendment to this application, and may require the approval of the Planning Commission. 22. All landscaped areas shall be maintained in a healthy and growing condition and shall receive regular pruning, fertilizing, mowing and trimming. All landscaped areas shall be kept free of weeds and debris. All irrigation systems shall be kept operable, including adjustments, replacements, repairs, and cleaning as part of regular maintenance. 23. Water should not be used to clean paved surfaces such as sidewalks, driveways, parking areas, etc. except to alleviate immediate safety or sanitation hazards. 16-34 24. The washing of the outdoor dining patio or any other outdoor area with any cleaning solutions or the use of high pressure or steam cleaning devices is prohibited. 25. Lighting shall be in compliance with applicable standards of the Zoning Code. The site shall not be excessively illuminated based on the luminance recommendations of the Illuminating Engineering Society of North America, or, if in the opinion of the Community Development Director, the illumination creates an unacceptable negative impact on surrounding land uses or environmental resources.The Community Development Director may order the dimming of light sources or other remediation upon finding that the site is excessively illuminated. 26. All noise generated by the existing eating and drinking establishment use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher: Between the hours of 7:00 Between the hours of 10: 00 a.m. and 10: 00 p. m. p. m. and 7: 00 a. m. Measured at the property line of 65 dBA 60 dBA commercially zoned property: Measured at the property line of 55 dBA 50 dBA residentially zoned property: Measured in the interior of a 45 dBA 40 dBA residential structure: 27. Prier t,. issuGnce L#building permits, the � .,..t.,...«:.... ..1...... 9nd..get,,Fial.. F...the .. ..,,,.I ati,. 4hG11 ti„ reviewed by G . ticGl engineer retGined by the r:t., to .verify the potential to mitigGte the n - h„PIG 28. P4eF tt9 ceFt ficGte 4 occupapi;y Fee u 4 the e&tdee Gtie H,..,end 4149 .. Gn Grolog6pq pFeperty lines qd Ot the r 9idP...ti,.lI F9Pg iq the vicinity to verify C ..4GRCe With the G , 4CGb le 29. The applicant /operator of the facility shall be responsible for and shall actively control any noise generated by the subject facility including, but not limited to, noise generated by patrons, food service operations, and mechanical equipment. 30. Should the property be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing agent. 31. Live entertainment shall be allowed in the interior of the eating and drinking establishment in conjunction with the operator obtaining and maintaining a live entertainment permit from the City. In conjunction with the approval of this use-Use Permit the operator shall amend the existing live entertainment permit consistent with the conditions of approval and the authorized operational changes. 32. No outside paging system or loudspeaker device shall be used in conjunction with this establishment. 33. No live entertainment shall be permitted in the outdoor dining area or any other outdoor area. Recorded music or other types of sound amplification within the outdoor dh4ng-areas shall only be audible to the audience within this area, and shall cease after the hour of 10:00 p.m. daily. 34. Dancing shall be allowed on the premises on Thursdays, Fridays, and Saturdays, as well as twelve (12) other nights throughout the year.F. ^^-z on , in ^junco,. ,,,Ita the issuonce ,.F , cglf„ Dance permit by the C4),A49n,yer er designee, rF......lice1.1,. The applicantloperotor shall notl(y 16-35 the City's Community Development Director, or his or her designee, in writing at least twenty- four(24)hours prior to allowing dancing for each of the twelve (12) other nights throughout the year. 35. The applicant/operator shall provide licensed security personnel while offering live entertainment and/or dancing. A comprehensive security plan for the permitted uses shall be submitted for review and approval by the Newport Beach Police Department (NBPD). The procedures included in the plan and any recommendations made by the NBPD shall be implemented and adhered to for the life of the Conditional Use Permit. 36. Trash receptacles for patrons shall be conveniently located both inside and outside of the establishment, however, not located on or within any public property or right-of-way. 37. The exterior of the business shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. 38. The applicant/operator shall ensure that the trash dumpsters and/or receptacles are maintained to control odors. This may include the provision of either fully self-contained dumpsters or periodic steam cleaning of the dumpsters, if deemed necessary by the Code Enforcement Division. Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14, including all future amendments (including Water Quality related requirements). 39. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10:00 p.m. and 8:00 a.m. the following morning, unless otherwise approved by the Community Development Director, and may require an amendment to this Use Permit. 40. Storage outside of the building in the front or at the rear of the property shall be prohibited, with the exception of the required trash container enclosure. 41. No recreational vehicles, boats, food trucks, portable street kitchens or similar vehicles shall be stored at any time at the subject site. 42. A Special Events Permit is required for any event or promotional activity outside the normal operational characteristics of the approved use, as conditioned, or that would attract large crowds, involve the sale of alcoholic beverages, include any form of on—site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. 43. Kitchen exhaust fans shall be installed /maintained in accordance with the Uniform Mechanical Code. The issues with regard to the control of smoke and odor shall be directed to the South Coast Air Quality Management District. 44. All exits shall remain free of obstructions and available for ingress and egress at all times. 45. The occupancy load shall be set or established pursuant to Section 1004, et.sep., of the California Building Code. The determination should initially be made by the building official of the City of Newport Beach whose decision is appealable to the Building and Fire Board of Appeals in accordance with Chapter 15.80 of the Newport Beach Municipal Code. The decision of the Building and fire Appeals Board is subject to judicial review pursuant to Code of Civil Procedure Section 1094.5. 46. The use of private (enclosed) "VIP" rooms or any other temporary or permanent enclosures separate from public areas are prohibited. 47. All owners, managers and employees selling, serving or giving away alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for selling alcoholic beverages. The certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service or other certifying /licensing body, which the State may designate. The establishment shall comply with the requirements of this section within 180 days of the issuance of the certificate of occupancy. Records of each 16-36 owner's, manager's and employee's successful completion of the required certified training program shall be maintained on the premises and shall be presented upon request by a representative of the City of Newport Beach. 48. Any event or activity staged by an outside promoter or entity, where the restaurant owner or his employees or representatives share in any profits, or pay any percentage or commission to a promoter or any other person based upon money collected as a door charge, cover charge or any other form of admission charge, including minimum drink orders or sale of drinks is PFGhihite4 only permitted after 10 p.m. on Thursday. Friday, and Saturday nights, as well as twelve (12) other nights throughout the year. Additionally, the applicant/operator may collect a door charge, cover charge, or any other form of admission charge, including minimum drink orders or sale of drinks only after 10 p.m. on Thursday, Friday, and Saturday nights, as well as twelve (12) other nights throughout the year. 49. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the license. 50. ADy_Na"happy hour" type of reduced price alcoholic beverage promotion shall only be allowed exeept in conjunction with food service. AVA"AhIP f-^^• the f •" g^^o'^^ mpRu. There shall be no reduced price alcoholic beverage promotion after 10:00 p.m. 51. "nni^i...••,., d.i. k AFde aFe .Mbit.. 52. The .. ^.teFl., gF9SS ^Ipq ^f Alrphplir beye.^^^s shall net a ed the gF9SS aipg of fgpd ;4nd FPt^il 4^I^S d.•.i^^ the same ^^.iad The licensee shall comply with the California Board of Alcoholic Beverage Control Requirements for a Type 47 alcoholic beverage control license, including, but not limited to, the service of food shall be the principal use of the facility.WA^ ,g .t Pf the lippRqed Said FPGAFGs shall be I(ePt R9 less fFequeRtly than OR a quarteFly basis 53. No on-site radio, television, video, film or other media broadcasts from the establishment that includes the service of alcoholic beverages shall be permitted without first obtaining an approved Special Event Permit issued by the City. This prohibition of media broadcasts includes recordings to be broadcasted at a later time. 54. All signs shall be in conformance with the provisions of Chapter 20.42 of the Newport Beach Municipal Code. 55. Applicant/operator shall comply with the City's sign coder'-^-^ `hall be ^^ exteFier ^d••^-t,.,..^ OF SigHS Of aRY I.i..d eF type ipeludiRg adyeFtisiAg diFPetP;I t.. the ..)AeFiBF f....... Within, pFemeting 9 indiGating the availability of alnehelin L...V@Fages lRteFiGF &Fla.'s of alnehelin beverages eF signs that aFe eleaFly visible ta the exteFiOF shall eanstitute a violatien ef this CQnd'ti. 56. No games or contests requiring or involving the consumption of alcoholic beverages shall be permitted. 57. 58. Occupant Load shall be.FPoiRtniRPd of ,LA ^,.,.••^^^t, tetGl fee^ll ^ g determined by the Chief Building Official, based upon the California Building Code and Newport Beach Municipal Code. 59. ra^ 60. per,994s shag be required figr the iRstalletien ef Ave awnings. AwRings shall Rgeet Me 16-37 61. .,d m•^ i^^a5^ ted w., gu4diny i-^.,^ C4;G t@r 21 Section=34954. 62. Canepies shall be PAR9tFIIPtPd with an appFeved GaveFing that FReets the fire prepagat C OA ...III 772 as eF Q Q 11 See 2109 A 63. 64. To the fullest extent permitted by law, ate'" operator exercising any rights under this permit shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses including without limitation, attorney' s fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (-directly or indirectly) to City' s approval of the subject restaurant facility ( currently operating as Woody's Wharf Restaurant) including, but not limited to, the Use Permit No. 2011 -010 and "^•'^^^^ ^'^ VA=92 906. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by ap operator, City, and /or the parties initiating or bringing such proceeding. The '"""^^^'/operator shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The !operator shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. 16-38 Attachment C Planning Commission Resolution 1988 (UP2011-010, Current CUP) 16-39 RESOLUTION NO. 1922 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH APPROVING CONDITIONAL USE PERMIT NO. UP2011-010 AND VARIANCE NO. VA2013-006 TO MODIFY VALET SERVICE, OPENING HOURS, CLOSING HOUR OF THE OUTDOOR DINING AREA, WAIVER OF SIX PARKING SPACES, ALLOW A PATIO COVER TO ENCROACH INTO THE BULKHEAD SETBACK, A CHANGE TO OUTDOOR SEATING PLAN AND THE ADDITION OF PATRON DANCING; AND SUPERSEDING USE PERMIT NO. 3065 AND OUTDOOR DINING PERMIT NO. 1 AT AN EATING AND DRINKING ESTABLISHMENT LOCATED AT 2318 NEWPORT BOULEVARD (PA2011-055). THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Martin Potts on behalf of the Woody's Wharf Restaurant, with respect to the property located at 2318 Newport Boulevard, and legally described as Lots 6, 7, and 8, Section A Newport Beach, Block 223, requesting to amend the existing use permit to change the operational characteristics of an existing restaurant. 2. An application requesting the following changes in the operational characteristics of the existing restaurant: 1) to extend the opening hour from 11:00 a.m. to 10:00 a.m., daily; extend the closing hour of the existing outdoor dining area from 11:00 p.m. to 2:00 a.m., daily; 2) to accommodate patron dancing in the interior of the restaurant, nightly; 3) to amend the requirement for full-time valet parking service during restaurant operating hours, to only require valet services on an as-needed basis (to accommodate special events and holiday peak use); and 4) to approve a waiver of up to 6 parking spaces that results from the addition of patron dancing and eliminating valet parking service on a full time basis. The application will also eliminate conditions of approval that are duplicative and/or otherwise outdated, as requested by the applicant. 3. On July 11, 2013 an application was submitted to request a variance to construct a patio cover on the existing patio which would encroach into the bulkhead setback. 4. The subject property is located within the Mixed Use — Water Related Zoning District (MU- W2) and the General Plan Land Use Element category is also Mixed Use — Water Related District (MU-W2). 5. The subject property is located within the coastal zone. The Coastal Land Use Plan category is Mixed Use—Water Related District (MU-W). 6. The construction of the patio cover will reduce the noise levels generated by patrons utilizing the outdoor patio, as documented by separate noise studies developed by the applicant and the City. 16-40 Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 2 of 16 7. Removal of tables and chairs on the outdoor patio, as proposed, will not result in increased noise levels provided the occupancy level of the patio is not increased. 8. The current parking requirement is one (1) parking space for every 40 square feet of net public area. The net public area proposed is 1,589 square feet; therefore the parking requirement is 40 spaces. There are 26 spaces on-site (with 6 tandem spaces available only with the valet parking service) and 10 spaces annual in-lieu spaces, and a credit of 4 spaces for the boat docks is granted, for a total 40 parking spaces allocated to the use. 9. The removal of tables and chairs within the main dining room to accommodate patron dancing will result in a change in operational characteristics of the restaurant but because live entertainment is already permitted, dancing will not generate additional noise in the surrounding area. 10. In accordance with the Newport Beach Municipal Code, on November 8, 2012 the Planning Commission conducted a public hearing and approved: 1) extending the opening hour of the restaurant and outdoor dining area from 11:00 a.m. to 10:00 a.m., daily; 2) extending the closing hour of the outdoor dining area from 11:00 p.m. to Midnight on Friday and Saturday nights; 3) the use of the valet parking on an as-needed basis; and 4) waiver of a portion of the required parking. The portion of the application that was denied included: 1) the introduction of patron dancing within the interior of the restaurant; 2) removing tables and chairs within the outdoor dining area; and 3) extending the closing hour of the outdoor dining area from 11:00 p.m. to 2:00 a.m. from Sunday to Thursday. 11. On November 26, 2012, the project applicant filed an application and letter of justification appealing the Planning Commission's decision. The City Council considered the appeal at a public hearing on March 12, 2013 and requested the Planning Commission reconsider the item on the basis that the applicant modified the application following the Planning Commission's decision. 12. A public hearing before the Planning Commission was held on September 5, 2013, in the City Hall Council Chambers, 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code (NBMC). Following consideration of all evidence, both written and oral, the Planning Commission at this meeting approved: 1) extending the opening hour of the restaurant and outdoor dining area from 11:00 a.m. to 10:00 a.m., daily; 2) extending the closing hour of the outdoor dining area from 11:00 p.m. to 2:00 a.m. on Friday and Saturday nights; 3) the introduction of patron dancing within the interior of the restaurant on Friday and Saturday nights; 4) removing tables and chairs within the outdoor dining area on Friday and Saturday nights; 5) the use of the valet parking on an as-needed basis; and 6) waiver of a portion of the required parking. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITYACT DETERMINATION. 1. This project has been determined to be categorically exempt under the requirements of the California Environmental Quality Act under Class 1- Existing Facilities. 16-41 Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 3 of 16 2. This exemption applies to existing facilities where it can be demonstrated the project involves negligible or no expansion of the existing use. The change in hours of operation or addition of patron dancing does not involve an expansion or intensification of the existing use. Additionally, the change in the provision of valet parking services on an as- needed basis is consistent with the previous restaurant operations prior to acquisition by the current applicant. SECTION 3. REQUIRED FINDINGS — USE PERMIT. In accordance with Sections 20.48.030 (Alcohol Sales) and 20.52.020 (Conditional Use Permit) of the Newport Beach Municipal Code, the following finding and facts in support of such finding is set forth: Finding: A. The use is consistent with the purpose and intent of Section 20.48.030 (Alcohol Sales) of the Zoning Code. Facts in Support Finding: A-1. The project has been reviewed and conditioned to ensure that the purpose and intent of Section 20.48.030 (Alcohol Sales) of the Zoning Code is maintained and that a healthy environment for residents and businesses is preserved. The service of alcoholic beverages is intended for the convenience of customers of the restaurant. Operational conditions of approval recommended by the Newport Beach Police Department (NBPD) relative to the sale of alcoholic beverages will ensure compatibility with the surrounding use and minimize alcohol-related impacts. A-2. Pursuant to Chapter 5.25 of the NBMC, the operator, as well as any future operators, is has been conditioned to require that the applicant, as well as any future operators, to obtain an Operator License to ensure the establishment is operated in a safe manner and compatible with the neighborhood. A-3. The subject property is located within a mixed use district developed primarily with commercial uses. Across the Rhine Channel, the closest residential district is approximately 570 feet away. To the north, the closest residential use is approximately 200 feet away and residential uses associated with the future South Coast Shipyard Project will be approximately 100 feet away. To the west, the nearest residential uses are 230 feet away; and to the north the nearest residential uses are approximately 200 feet away. The nearest park is the public beach adjacent to the West Ocean Front Boardwalk over 650 feet from the subject property. There are no day care centers, recreation facilities, places of religious assembly, or schools in close proximity to the subject property. In accordance with Section 20.52.020 of the Zoning Code, eating and drinking establishments classified as "Food Service, Late Hours" require the approval of a conditional use permit within the Mixed-Use Water Related (MU-W2) Zoning District. In accordance with Section 20.52.020.E of the Zoning Code, the following findings and facts in support of such findings are set forth: 16-42 Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 4 of 16 Finding: B. The use is consistent with the General Plan and any applicable specific plan. Facts in Support of Finding: B-1. The Mixed-Use Water Related (MU-W2 and MU-W) land use designations of the General Plan and Coastal Land Use Plan are intended to encourage water related uses intermixed with general commercial, visitor-serving commercial and residential uses. The operation of a. "Food Service, Late Hours" use with alcoholic beverage sales is consistent with the purpose and intent of this land use designation. B-2. Food service uses are expected to be located in commercial areas, and are complementary to the existing commercial and residential uses in the area. Such uses are frequented by visitors, tenants of the nearby commercial uses, and residents alike. B-3. The subject property is not part of a specific plan area. Finding: C. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code. Facts in Support of Finding: C-1. The subject property is located in the Mixed Use — Water Related Zoning District (MU-W2), and eating and drinking establishments classified as "Food Service, Late Hours" require the approval of a conditional use permit. C-2. As conditioned, the project will comply with Zoning Code standards for eating and drinking establishments. Conditions are included related to on-sale alcoholic beverage activities, including the training of personnel, and ,the provision of security personnel while live entertainment is offered. C-3. Pursuant to Chapter 5.25 of the NBMC, the project has been conditioned to require the applicant, and any future operator of the eating and drinking establishment, to obtain an Operator License from the Newport Beach Police Department (NBPD) in order to maintain operating hours beyond 11 :00 p.m., to add dancing and to modify operations, as proposed. C-4. As conditioned, the proposed patio cover shall be constructed in accordance with the submitted plans and tested to confirm the expected noise reduction is provided prior to use of the outdoor patio beyond 11 :00 p.m. C-5. As conditioned, the applicant shall obtain a Cafe Dance Permit from the Newport Beach Revenue Division in order to allow patron dancing on-site. 16-43 Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 5 of 16 Finding: D. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity. Facts in Support of Findinq: D-1. The project has been reviewed and conditioned to ensure that potential conflicts with the surrounding land uses are minimized to the extent possible to maintain a healthy environment for both residents and businesses. D-2. As conditioned, the approved seating plan shall be maintained on the basis that the removal of table and chairs from the outdoor dining area increases the number of patrons in this area and likely to result in increased noise levels that will adversely impact nearby properties and residential occupants. D-3. The dancing activities are anticipated to result in an increase in the number patrons entering and exiting the building and thereby exposing the increased noise levels of the interior and the noise generated by the live entertainment and/or dancing to the surrounding area. D-4. The existing outdoor dining patio is surrounded by glass walls which aid to minimize noise from emanating from this area, but are not adequately effective in controlling noise as evidence by noise complaints received by the Police Department and the correspondence received. D-5. The effectiveness of the proposed a patio cover has been evaluated by two acoustical engineers who indicate it will significantly reduce the noise levels from the patio area. D-6. Construction of the proposed patio cover will significantly reduce noise from the patio area to levels well below the Noise Ordinance criteria at the existing mixed use residences to the north and the future residences to the south. Therefore, extending the closing hour to 2:00 a.m. will not adversely impact nearby properties and residential occupants into the late night hours, and is a compatible activity for the neighborhood. D-7. In order to further reduce the potential impact on neighboring properties, a condition of approval is required to prohibit recorded music or other types of sound amplification within the outdoor dining area at all times. Additionally, conditions of approval require the doors exiting the building to the outdoor dining area to remain closed whenever live entertainment is performed inside the building, except in the case when persons are entering and exiting the building. D-8. The location of the valet parking pick-up and drop-off area is shielded from the residences by the restaurant building, thereby mitigating noise impacts from this activity to residential uses across and along the Rhine Channel. D-9. Adequate number of parking spaces are available on-site and the valet parking service serving the nighttime operation will prevent traffic backing up onto Newport Boulevard. The 16-44 I Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 6 of 16 waiver of a portion of the on-site parking caused by the elimination of the valet parking service during daytime hours of the operation is offset by the lower parking demand for the use based upon on-site observations and the availability of the municipal parking lots in the vicinity. The use of the valet parking service when live entertainment occurs and on an as- needed basis in the evening will maximize on-site utilization of the parking lot and in the case that the lot is full, parking is available in the municipal metered parking lot across the street (the meters are not in effect after 6:00 p.m. daily). Therefore, the waiver of 6 parking spaces for the daytime and nighttime operational periods as proposed is reasonable in this particular case. Finding: E. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities. Facts in Support of Finding: E-1. This is an eating and drinking establishment that has existed in this location since the 1960's. The project site has proven to be physically suitable in size to accommodate the restaurant use. E-2. The project site is located on Newport Bay between 24th and 26th Street overlooking the Rhine Channel and is surrounded by similar commercial uses located to the north (next door), and the northwest of the use. This is an appropriate location for an eating and drinking establishment. The restaurant use is complementary to the existing commercial uses in the area, as well as convenient to serve the residential uses located to the north and east across the Rhine Channel in relation to the project site. E-3. The Traffic Engineer has previously reviewed the configuration of the parking lot, as well as the valet parking plan, and has determined the parking lot design functions safely and does not prevent emergency vehicle access to the establishment. E-4. The site is currently served by public services and utilities. Finding: F. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Facts in Support of Finding: F-1. The project has been reviewed and appropriately conditioned to ensure the continued operation of the existing eating and drinking establishment as a restaurant, and not as a bar/nightclub, will not be detrimental to the community. 16-45 Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Pape 7 of 16 F-2. The proposed patio cover will significant reduce noise levels from the patio area and will remain within the Noise Ordinance criteria. Since the applicant has presented a physical barriers to mitigate existing or anticipated increase in noise levels associated with late night hours, an extension of the outdoor patio hours to 2:00 a.m. and the introduction of patron dancing is justiifed. F-3. The applicant has operated the existing eating and drinking establishment in this location since 2002, and is required to proactively control noise generated by patrons of the restaurant. The operator will be required to obtain an Operator License from the NBPD in order to accommodate the proposed closing hour beyond 11:00 p.m. The Operator License will provide for enhanced control of noise, loitering, litter, disorderly conduct, parking/circulation, and other potential disturbances resulting from the existing establishment, and will provide the NBPD with means to modify, suspend, or revoke the operator's ability to maintain late-hour operations if objectionable condition occur. SECTION 4. REQUIRED FINDINGS — VARIANCE. In accordance with Section 20.52.090 (Variance) of the Newport Beach Municipal Code, the following finding and facts in support of such finding is set forth: Finding: A. There are special or unique circumstances or conditions applicable to the subject property (e.g., location, shape, size, surroundings, topography, or other physical features) that do not apply generally to other properties in the vicinity under an identical zoning classification. Facts in Support of Finding: A-1. The location of the subject property is unique in that it is located on the bay where a bulkhead exists. The patio cover is proposed to mitigate noise generated on an existing patio which encroaches into the 10-foot bulkhead setback. Covering the patio to implement the desired mitigation necessitates an encroachment into the bulkhead setback. Finding: B. Strict compliance with Zoning Code requirements would deprive the subject property of privileges enjoyed by other properties in the vicinity and under an identical zoning classification. Facts in Support of Finding: B-1. Two parcels located north of the subject property are also constructed at the bulkhead. American Junkie, located immediately to the north, also has an outdoor patio located at or beyond the bulkhead line which is not covered. 16-46 Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 8 of 16 Finding: C. Granting of the Variance is necessary for the preservation and enjoyment of substantial property rights of the applicant. Facts in Support of Finding: C-1. The applicant seeks to construct a patio cover to mitigate noise generated by the use of an existing outdoor patio. Allowing the cover to be constructed within the setback area is anticipated to reduce noise complaints and allow the patio area to be used until 2:00 a.m., daily. Without the patio cover in place, the outdoor area will be restricted to 11:00 p.m., daily. Finding: D. Granting of the Variance will not constitute a grant of special privilege inconsistent with the limitations on other properties in the vicinity and in the same zoning district. D-1. Two parcels located north of the subject property are also constructed at the bulkhead. American Junkie, located immediately to the north, also has an outdoor patio located at or beyond the bulkhead line which is not covered. Facts in Support of Finding: Finding: E. Granting of the Variance will not be detrimental to the harmonious and orderly growth of j the City, or endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood. E-1. Two parcels located north of the subject property are also constructed at the bulkhead. American Junkie, located immediately to the north, also has an outdoor patio located at or beyond the bulkhead line which is not covered. Facts in Support of Finding: Finding: F. Granting of the Variance will not be in conflict with the intent and purpose of this Section, this Zoning Code, the General Plan, or any applicable specific plan, Facts in Support of Finding: F-1. The encroachment would allow for a patio cover to encroach into the bulkhead setback. The patio cover is an accessory structure which will not extend the useful life of the primary structure. 16-47 Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 9 of 16 SECTION 5. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach hereby approves Use Permit No. UP2011-010 and Variance No. VA2013-006, to 1) extend the opening hour of the restaurant and outdoor dining area from 11:00 a.m. to 10:00 a.m., daily; 2) extend the closing hour of the outdoor dining area from 11:00 p.m. to 2:00 a.m. on Friday and Saturday nights; 3) introduce patron dancing within the interior of the restaurant on Friday and Saturday nights; 4) remove tables and chairs within the outdoor dining area on Friday and Saturday nights; 5) use of the valet parking on an as-needed basis; and 6) waiver of a portion of the required parking subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. 2. This action shall become final and effective fourteen days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. 3. This resolution supersedes Use Permit No. 3065, 3065 (amended); and Outdoor Dining Permit No. 1, which upon vesting of the rights authorized by this Conditional Use Permit No. UP2011-010 and Variance No. VA 2013-006 shall become null and void. PASSED, APPROVED AND ADOPTED THIS 5eh DAY OF SEPTEMBER, 2013. AYES: Ameri, Brown, Hillgren, Kramer, and Lawler NOES: Myers and Tucker ABSTAIN: None ABSENT: None BY: / ren, Chairman BY: Kory <ra cret ry 7 16-48 Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 10 of 16 EXHIBIT "A" CONDITIONS OF APPROVAL (Project-specific conditions are in italics) PLANNING 1 . The development shall .be in substantial conformance with the approved site plan, floor plans, and building elevations stamped and dated with the date of this approval (Except as modified by applicable conditions of approval). Prior to implementation of the activities approved by this application, the applicant shall submit a revised floor plan for approval by the Community Development Director that reflects the limitations and restrictions imposed by the conditions of approval. 2. Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 shall expire unless exercised within 24 months from the date of approval as specified in Section 20.54.060 of the Newport Beach Municipal Code (NBMC), unless an extension is otherwise granted. 3. The hours of operations of the restaurant shall be limited to between 10:00 a.m, and 2:00 a.m., daily. The hours of the outdoor dining area are limited to 10:00 a.m. and 11:00 p.m. daily, however, Friday and Saturdays closing may be extended to 2:00 a.m. The applicant/operator, including any future operator, shall secure and maintain an Operator License issued by the Chief of Police, pursuant to Chapter 5.25 of the NBMC. In no case shall the eating and drinking establishment be permitted to operate beyond the hour of 2:00 a.m., daily. 4. All doors and windows of the interior, including the patio cover, of the eating and drinking establishment shall remain closed whenever live entertainment occurs after 10:00 p.m., except for the ingress and egress of patrons and employees. Doors shall not be propped open, or remain open longer than necessary, to allow for the ingress and egress of patrons and employees. 5. The Operator License required to be obtained pursuant to Condition No. 3 and Chapter 5.25 may be subject to additional and/or more restrictive conditions to regulate and control potential late-hour nuisances associated with the operation of the establishment. 6. Full meal service shall be provided and available for ordering until 10 p.m. and an abbreviated menu that includes heavy appetizers after 10 p.m. daily and serving until a half- hour before closing. 7. The outdoor dining area shall be used in conjunction with the eating and drinking establishment. No special events/promotional activities shall be allowed within the outdoor dining area. 8. The outdoor dining area shall be limited to 709 square feet in area. 16-49 Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 11 of 16 9. The outdoor dining area shall be limited to a maximum of 66 seats, including disabled seats/table space, consistent with the floor plans as approved by Plan Check set of plans PC 1141-2011. The seating and dining in the outdoor dining patio shall be limited to dining table height(approximately 30 inches) and the use of the elevated counters and barstools is prohibited. Removal of dining tables and chairs shall be prohibited between Sunday to Thursday. 10. All employees shall park on-site or in the municipal parking lots in the vicinity. 11. The net public area of the interior portion of the eating and drinking establishment shall not exceed 1,173 square feet and the outdoor dining area shall not exceed 709 square feet for a total of 1,882 square feet of net public area. 12. A minimum of 26 parking spaces shall be provided on-site and payment of in lieu parking fees for 10 spaces for the operation of the eating and drinking establishment. A total of 40 parking spaces shall be provided on-site and by payment of in lieu fees (annually for four parking spaces) for all hours of operation of the establishment (one parking space for each 40 square feet of net public area, 1,589 sq. ft.). Valet parking service shall be provided whenever live entertainment occurs and on an as-needed basis. 13. The applicant/operator shall conspicuously post and maintain signs at all outdoor dining, waiting, smoking and parking areas indicating to patrons the proximity of the restaurant and public dock and boat slip areas to the residential areas, requesting patrons: `Be courteous and respectful of our residential neighbors while outside the establishment". 14. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 15. The applicant/operator shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this Conditional Use Permit. 16. The applicantloperator shall maintain a copy of themost recent City permit conditions of approval on the premises and shall post a notice that these are available for review on the premises. The posted notice shall be signed by the permittee. 17. This approval was based on the particulars of the individual case and does not in and of itself or in combination with other approvals in the vicinity or Citywide constitute a precedent for future approvals or decisions. 18. This Conditional Use Permit and Variance may be modified or revoked by the City Council or Planning Commission should they determine that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 19. Approval of Conditional Use Permit No. 2011-010 is for the operation of an eating and drinking establishment defined as "Food Service, Late Hours" per Title 20 of the NBMC, 16-50 I Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 12 of 16 and does not permit or authorize the use or operation of a bar, tavern, cocktail lounge, nightclub or commercial recreational entertainment venue. 20. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to this Conditional Use Permit or the processing of a new Conditional Use Permit. 21. The type of alcoholic beverage license issued by the California Board of Alcoholic Beverage Control shall be a Type 47 in conjunction with the service of food as the principal use of the facility. Any upgrade in the alcoholic beverage license shall be subject to the approval of an amendment to this application, and may require the approval of the Planning Commission. 22. All landscaped areas shall be maintained in a healthy and growing condition and shall receive regular pruning, fertilizing, mowing and trimming. All landscaped areas shall be kept free of weeds and debris. All irrigation systems shall be kept operable, including adjustments, replacements, repairs, and cleaning as part of regular maintenance. 23. Water should not be used to clean paved surfaces such as sidewalks, driveways, parking areas, etc. except to alleviate immediate safety or sanitation hazards. 24. The washing of the outdoor dining patio with any cleaning solutions or the use of high pressure or steam cleaning devices is prohibited. 25. Lighting shall be in compliance with applicable standards of the Zoning Code. The site shall not be excessively illuminated based on the luminance recommendations of the Illuminating Engineering Society of North America, or, if in the opinion of the Community Development Director, the illumination creates an unacceptable negative impact on surrounding land uses or environmental resources. The Community Development Director may order the dimming of light sources or other remediation upon finding that the site is excessively illuminated. 26. All noise generated by the existing eating and drinking establishment use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher: Between the hours of Between the hours of 7:00 a.m. and 10:00 p.m. 10:00 p.m. and 7:00 a.M. Measured at the property line of commercially zoned property: 65 dBA 60 dBA Measured at the property line of residentially zoned property: 55 dBA 50 dBA Measured in the interior of a 45 dBA 40 dBA 16-51 Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 13 of 16 residential structure 27. Prior to issuance of building permits, the construction plans and materials for the proposed patio cover shall be reviewed by an acoustical engineer retained by the City to verify the potential to mitigate the noise levels. 28. Prior to certificate of occupancy for use of the outdoor patio beyond 11:00 p.m., an acoustical engineer retained by the City shall conduct noise measurements around the enclosure, at the property lines, and at the residential uses in the vicinity to verify compliance with the applicable noise control requirements of the Newport Beach Municipal Code. 29. The applicant/operator of the facility shall be responsible for and shall actively control any noise generated by the subject facility including, but not limited to, noise generated by patrons, food service operations, and mechanical equipment. 30. Should the property be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing agent. 31. Live entertainment shall be allowed in the interior of the eating and drinking establishment in conjunction with the operator obtaining and maintaining a live entertainment permit from the City. In conjunction with the approval of this use permit, the operator shall amend the existing live entertainment permit consistent with the conditions of approval and the authorized operational changes. 32. No outside paging system or loudspeaker device shall be used in conjunction with this establishment. 33. No live entertainment shall be permitted in the outdoor dining area. Recorded music or other types of sound amplification within the outdoor dining area shall only be audible to the audience within this area, and shall cease after the hour of 10:00 p.m. daily. 34. Dancing shall be allowed on the premises only in conjunction with the issuance of a Caf6 Dance permit by the City Manager or designee, if applicable. 35. The applicant/operator shall provide licensed security personnel while offering live entertainment. A comprehensive security plan for the permitted uses shall be submitted for review and approval by the Newport Beach Police Department (NBPD). The procedures included in the plan and any recommendations made by the NBPD shall be implemented and adhered to for the life of the Conditional Use Permit. 36. Trash receptacles for patrons shall be conveniently located both inside and outside of the establishment, however, not located on or within any public property or right-of-way. 37. The exterior of the business shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. 16-52 Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 14 of 16 38. The applicant/operator shall ensure that the trash dumpsters and/or receptacles are maintained to control odors. This may include the provision of either fully self-contained dumpsters or periodic steam cleaning of the dumpsters, if deemed necessary by the Code Enforcement Division. Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14, including all future amendments (including Water Quality related requirements). 39. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10:00 p.m. and 8:00 a.m. the following morning, unless otherwise approved by the Community Development Director, and may require an amendment to this Use Permit. 40. Storage outside of the building in the front or at the rear of the property shall be prohibited, with the exception of the required trash container enclosure. 41. No recreational vehicles, boats, food trucks, portable street kitchens or similar vehicles shall be stored at any time at the subject site. 42. A Special Events Permit is required for any event or promotional activity outside the normal operational characteristics of the approved use, as conditioned, or that would attract large crowds, involve the sale of alcoholic beverages, include any form of on-site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. 43. Kitchen exhaust fans shall be installed/maintained in accordance with the Uniform Mechanical Code. The issues with regard to the control of smoke and odor shall be directed to the South Coast Air Quality Management District. 44. All exits shall remain free of obstructions and available for ingress and egress at all times. 45. Strict adherence to maximum occupancy limits is required. 46. The use of private (enclosed) "VIP" rooms or any other temporary or permanent enclosures separate from public areas are prohibited. 47. All owners, managers and employees selling, serving or giving away alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for selling alcoholic beverages. The certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service or other certifying/licensing body, which the State may designate. The establishment shall comply with the requirements of this section within 180 days of the issuance of the certificate of occupancy. Records of each owner's, manager's and employee's successful completion of the required certified training program shall be maintained on the premises and shall be presented upon request by a representative of the City of Newport Beach. 48. Any event or activity staged by an outside promoter or entity, where the restaurant owner or his employees or representatives share in any profits, or pay any percentage or commission to a promoter or any other person based upon money collected as a door 16-53 Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 15 of 16 charge, cover charge or any other form of admission charge, including minimum drink orders or sale of drinks is prohibited. 49. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the license. 50. No "happy hour" type of reduced price alcoholic beverage promotion shall be allowed except in conjunction with food service available from the full service menu. There shall be no reduced price alcoholic beverage promotion after 10:00 p.m. 51. "Minimum drink orders are prohibited. 52. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food and retail sales during the same period. The licensee shall maintain records that reflect separately the gross sale of food and the gross sales of alcoholic beverages of the licensed business. Said records shall be kept no less frequently than on a quarterly basis and shall be made available to the NBPD on demand. 53. No on-site radio, television, video, film or other media broadcasts from the establishment that includes the service of alcoholic beverages shall be permitted without first obtaining an approved Special Event Permit issued by the City. This prohibition of media broadcasts includes recordings to be broadcasted at a later time. 54. All signs shall be in conformance with the provisions of Chapter 20.42 of the Newport Beach Municipal Code. 55. There shall be no exterior advertising or signs of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages. Interior displays of alcoholic beverages or signs that are clearly visible to the exterior shall constitute a violation of this condition. 56. No games or contests requiring or involving the consumption of alcoholic beverages shall be permitted. 57. A modification is required to be filed with the Building Division, for compliance to Section 705.11 of the California Building Code. 58. Occupant Load shall be maintained at 164 Occupants total for all areas. 59. Accessibility upgrades shall be required pursuant to Section 1134.2.1 of the California Building Code. 60. Submit architectural and structural plans and calculations for plan review. Two (2) building permits shall be required for the installation of two awnings. Awnings shall meet the requirement for Class A roofing. 16-54 I I Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 16 of 16 61. Awnings and canopies shall be designed and constructed to withstand wind or other lateral loads and live loads as required by California Building Code Chapter 31 Section 3105.3. 62. Canopies shall be constructed with an approved covering that meets the fire propagation performance criteria of NFPA 701 or has a flame spread index not greater than 25 when tested in accordance with ASTM E 84 or UL 723 as per C.B.0 Sec. 3105.4. 63. Occupant load and seating arrangement under new exterior awning area must meet California Building Code Chapter 10. These items will be reviewed at the time of plan check. 64. To the fullest extent permitted by law, applicant/operator shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of the subject restaurant facility (currently operating as Woody's Wharf Restaurant) including, but not limited to, the Use Permit No. 2011-010 and Variance No. VA2013-006. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant/operator, City, and/or the parties initiating or bringing such proceeding. The applicant/operator shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The applicant/operator shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. 16-55 Attachment D Live Entertainment Permit, Woody's Wharf Restaurant 16-56 ACvEWP0 . O CITY OF NEWPORT BEACH UADMINISTRATIVE SERVICES cg4Foa� P Revenue Division Greg&Chris Pappas March 14, 2006 Woody's Wharf 2318 Newport Blvd Newport Beach, CA 92663 PERMIT TO CONDUCT LIVE ENTEI2TAINMENT The City of Newport Beach does hereby authorize live entertainment activities to be conducted at Woody's Wharf, 2318 Newport Blvd, Newport Beach, 92663 and must be posted at the location. This permit is issued to Greg & Chris Pappas and is not transferable to another location or individual. The approval of this permit is contingent on the compliance with the regulations for operation as defined by Newport Beach Municipal Code Section 5.28.041 and the following specific conditions: 1) The live entertainment and sound from it shall be limited and confined to the interior of the structure. 2) The outside deck may not be utilized after I1:00pm due to the confinement of live entertaimnent. 3) Dancing is prohibited. 4) Live entertainment shall be limited to no more than four musicians. 5) Comply with all conditions of the Use Permit. This permit may be revoked for any of the following reasons: 1) Failure to comply with the above stated conditions, 2) The permitee has ceased to meet the requirements for issuance of the permit, 2) The establishment has been operated in an illegal or disorderly manner or in violation of any of the regulations set forth in Section 5.28.04. 3) Music or noise from the establishment for which the permit was issued interferes with the peace and quietness-of the neighborhood. 4) The permittee or any person associated with him as principal or partner, or in a position or capacity involving total or partial control over the establishment for which this permit is issued, has been convicted of a criminal offense involving moral turpitude. C t / l Approved by: �— ? Date: Permit Conditions Acknowledged by _Dater. c �ity_Nlanage �. r Iolrce Department ' 3300 Newport. Boulevard • Post Office Box 1768 • Newport Beach, California 92658-891.5 Telephone: (949) 644-3141 • rax: (949) 644-3073 - www,city.newport:-beach.ca.us 16-57 Attachment E Noise Study (2013) 16-58 Noose Measurement Survey For WOODYFS WHARF CITY OF NEWPORT BEACH Prepared AFor: P)A,, Enc. 4041 MacArthur Blvd., Suite 490 Newport Beach, CA 92660 Submitted By: Mestre Greve Associates DivWon of Landrum & Brown Fred Greve P.E. 27812 EI Lazo Road Laguna Niguel, CA 92677 949m349m0671 January 8, 2013 Project #539001 16-59 Mestre Greve Associates Woody's Wharf Division of Landrum & Brown Page i TaWe Of (Contents 1 .0 EXISTING SETTING.............................................................................. 1 1. 1 Project Description................................................................................ 1 1.2 Background Information on Noise......................................................... 1 1.2.1 Noise Criteria Bacl<ground ................................................................1 1.3 Noise Criteria ........................................................................................ 5 1.4 Noise Measurements............................................................................ 6 1.5 Summary and Conclusions................................................................... 9 List ®f Tables Table 1 City Of Newport Beach Noise Ordinance Standards ........................................6 Table 2 Event Noise Measurements (dBA)....................................................................7 Lust ®f Exhibits Exhibit 1 Measurement Sites ...........................................................................................2 Exhibit 2 Typical A-Weighted Noise Levels .....................................................................4 16-60 Mestre Greve Associates Woody's Wharf Division of Landrum & Brown Page 1 i .® EXISTING SETTING 1.1 Project Description Woody's Wharf is a restaurant and bar located at 2318 Newport Boulevard in the City of Newport Beach (Exhibit 1). Live DJ music is played inside in the bar on Thursday, Friday; and Saturday nights. The bar room is open to an outside patio area via doors that are usually open, but remain closed after 10:00 p.m. other than when customers and employees are entering and exiting. The outside area is surrounded by a glass barrier approximately 6 feet high. The outside patio area is also covered for part of the year with a canvas canopy. The restaurant has a parking lot in the front of the building which contains a valet parking operation on the DJ music nights and at other times when peak demand warrant the valet. The restaurant also has boat docks in the front of the restaurant. This dock area is monitored by restaurant personnel and patrons are not allowed to hangout on the docks after 10 p.m. Guests with boats are permitted to dock their boats and enter the restaurant, but not to stay on their boats after 10 p.m. Outside on the south side of the restaurant is small smoking area where patrons can gather. Another restaurant/bar is located directly north of Woody's Wharf called the Commonwealth. This restaurant also has music. Other sources of noise in the area are other restaurant operations, traffic on Newport Boulevard, traffic of more distant roadways, boats traveling up and down the channel in front of Woody's Wharf, people staying on boats docked in the area, aircraft, and police helicopters. Complaints have been voiced regarding noise potentially from Woody's Wharf. The purpose of this study is to document the noise in the area and determine the contribution of Woody's Wharf to the overall noise levels experienced in the area. The focus of the monitoring is the mixed-use development to the north (refer to Exhibit 1). The second and third floors of the mixed-use development are residences, which are the source of the noise complaints. The Commonwealth, a single-family residence, and a small shipyard are located between the residences and Woody's Wharf. Noise measurements were taken at six sites on Friday, December 21 , 2012. The sites measured are shown on Exhibit 1 . Woody's Wharf was in full operation during the measurements with a capacity crowd. This report presents the methodology and results of the noise measurement survey. Noise levels are contrasted and compared to the City's Noise Ordinance. 1.2 Background Bnformation on Noise 1.2.9 Noise Criteria Background Sound is technically described in terms of the loudness (amplitude) of the sound and frequency (pitch) of the sound. The standard unit of measurement of the loudness of sound is the decibel (dB). Decibels are based on the logarithmic scale. The logarithmic scale compresses the wide range in sound pressure levels to a more usable range of numbers in a manner similar to the Richter scale used to measure earthquakes. In terms of human response to noise, a sound '1.0 dB higher than another is judged to be twice as loud; and 20 dB higher four times as loud; and so forth. Everyday sounds normally range from 30 dB (very quiet) to 100 dB (very loud). 16-61 Ali ✓ yy V� / .��d r ti. �C^ Lw cl 1 t_ M&4 �jµµ++� � r �uV6r.�1 V1 id - e •A •;1� C 1 Exhibit 1 Meslre GreveAss•aciales• Messurement Sites ,6-62 Mestre Greve Associates Woody's Wharf Division of Landrum & Brown Page 3 Since the human ear is not equally sensitive to sound at all frequencies, a special 'frequency- dependent rating scale has been devised to relate noise to human sensitivity. The A-weighted decibel scale (dBA) performs this compensation by discriminating against frequencies in a manner approximating the sensitivity of, the human ear. Community noise levels are measured in terms of the "A-weighted decibel," abbreviated dBA. Exhibit 2 provides examples of various noises and their typical A-weighted noise level. Sound levels decrease as a function of distance from the source as a result of wave divergence, atmospheric absorption and ground attenuation. As the sound wave form travels away from the source, the sound energy is dispersed over a greater area, thereby dispersing the sound power of the wave. Atmospheric absorption also influences the levels that are received by the observer. The greater the distance traveled, the greater the influence and the resultant fluctuations. The degree of absorption is a function of the frequency of the sound as well as the humidity and temperature of the air. Turbulence and gradients of wind, temperature and humidity also play a significant role in determining the degree of attenuation. Intervening topography can also have a substantial effect on the effective perceived noise levels. Noise has been defined as unwanted sound and it is known to have several adverse effects on people. From these known effects of noise, criteria have been established to help protect the public health and safety and prevent disruption of certain human activities. This criteria is based on such known impacts of noise on people as hearing loss, speech interference, sleep interference, physiological responses and annoyance. The description, analysis and reporting of community noise levels around communities is made difficult by the complexity of human response to noise and the myriad of noise metrics that have been developed for describing noise impacts. Each of these metrics attempts to quantify noise levels with respect to community response. Most of the metrics use the A-weighted noise level to quantify noise impacts on humans. A-weighting is a frequency weighting that accounts to]- human orhuman sensitivity to different frequencies. 16-63 0 dBA Outdoor Indoor threshold of hearing (0 dBA) 20 rustling of leaves (20 dBA) whispering at 5 feet (20 dBA) 40 quiet residential area (40 dBA) I>>> refrigerator (50 dBA) 60 / \\�Un air-conditioner at 100 feet (60 dBA) sewing machine (60 dBA) normal conversation to 65 dBA) /\/Ua dishwasher(55-70 dBA) car at 25feet at 65 mph (77 dBA) living room music or TV (70-75 dBA) 80 (� diesel truck at 50 feet at 40 mph (84 dBA) garbage disposal (80 dBA) propeller airplane flyover at 1000 feet (88 dBA) ringing telephone (80 dBA) motorcycle at 25 feet (90 dBA) vacuum cleaner(60-85 dBA) lawnmower (96 dBA) shouted conversation (90 dBA) backhoe at 50 feet (75-95 dBA) 100 snowmobile (100 dBA) pile driver at 50 feet (90-105 dBA) Dcar horn (I 10 dBA) baby crying on shoulder(110 dBA) rock concert (110 dBA) leaf blower(110 dBA) 120 ambulance siren (120 dBA) D stock car races(130 dBA) jackhammer(130 dBA) 140 sources: League For The Hard 01 Hearing•v,n Ihli.org Handl nok nl No'ae Cn r rel,McGraw Hill,Edited byCyril Harris,1979 Measureluents by Memo Greve Associates Exhibit 2 "I' voical Noose Levels 16-64 Mestre Greve Associates Woody's Wharf Division of Landrum & Brown Page 5 Several rating scales have been developed for measurement of community noise. These account for: (l.) the parameters of noise that have been shown to contribute to the effects of noise on man, (2) the variety of noises found in the environment, (3) the variations in noise levels that occur as a person moves through the environment, and (4) the variations associated with the time of day. They are designed to account for the known health effects of noise on people described previously. Based on these effects, the observation has been made that the potential for a noise to impact people is dependent on the total acoustical energy content of the noise. A number of noise scales have been developed to account for this observation. The three noise scales commonly used in Newport Beach are the: Equivalent Noise Level (Leq), the maximum sound level (Lmax), and the Community Noise Equivalent Level (CNEL). These scales are described in the following paragraphs. Leq is the sound level corresponding to a steady-state sound level containing the same total energy as a time-varying signal over a given sample period. Leq is the "energy" average noise level during the time period of the sample. Leq can be measured for any time period, but is typically measured for I hour. This I-hour noise level can also be referred to as the Hourly Noise Level (HNL). It is the energy sum of all the events and background noise levels that occur during that time period. Lmax is simply the maximum sound level that occurs in any given time period. The Lmax represents an instantaneous sound level, and there is no other second in a given time period which has a louder noise level. CNEL is the predominant rating scale now in use in California for land use compatibility assessment. The CNEL scale represents a time weighted 24-horn' average noise level based on the A-weighted decibel. Time weighted refers to the fact that noise that occurs during certain sensitive time periods is penalized for occurring at these times. The evening time period (7 p.m. to 10 p.m.) penalizes noises by 5 dBA, while nighttime (10 p.m. to 7 a.m.) noises are penalized by 10 dBA. These time periods and penalties were selected to reflect people's increased sensitivity to noise during these time periods. A CNEL noise level may be reported as a "CNEL of 60 dBA," "60 dBA CNEL," or simply "60 CNEL." 1.3 Noise Criteria A noise ordinance is designed to control unnecessary, excessive and annoying sounds from one parcel, of land impacting another parcel of land. Noise ordinance requirements cannot be applied to mobile noise sources when traveling on public roadways, because Federal and state laws preempt their control. However, a noise ordinance does apply to both mobile and stationary noise sources on private property. Newport Beach Ordinance Chapter 10.26—Community Noise Control comprises the City's Noise Ordinance. Table 1 presents the City of Newport Noise Ordinance standards. The City of Newport Beach noise criteria are given in terms of Leq and Lmax noise levels. The noise levels specified are 16-65 Mestre Greve Associates Woody's Wharf Division of Landrum & Brown Page 6 those that are not to be exceeded at a properly from noise generated at a nearby property (Table 1). Noise levels are to be measured with A-weighting and a slow time response usually for a 15 minute period. Greater noise levels are permittee( during the day (7 a.m. to 10 p.m.) as compared to the nighttime period (10 p.m. to 7 a.m.). These limits are increased if ambient noise levels are higher. The limits are essentially raised to the ambient levels. Table 1 City Of Newport Beach Noise Ordinance Standards ]Daytime Nighttime Leq ]Lmax lLeq Lmax Zone I-Single,two, or multiple family residential 55 dBA 75 dBA 50 dBA 70 dBA Zone II- Commercial 65 dBA 85 dBA 60 dBA 80 dBA Zone III-Residential portions of mixed-use properties 60 dBA 80 dBA 50 dBA 70 dBA Zone IV-Industrial or manufacturing 70 dBA 90 dBA 70 dBA 90 dBA The noise levels generated by Woody's Wharf or any other noise source on private property that impacts the residential portion of the mixed should not exceed those identified for Zone III. This would be measured at the property of the residential property (i.e., the receptor). Specifically at night the noise generated by Woody's Wharf or any other source should not exceed 50 dBA (Len) or 70 dBA (Lmax) at the residences of the mixed-use development. 1 .4 Noise Measurements Noise levels were made at six sites (Exhibit 1) during the late evening of December 2.1 , 2012 and early morning hours of December 22, 2012. Noise measurements at all sites were performed using Bruel & Kjwr Model 2238 automated digital noise data acquisition system and sound meter mounted on a tripod. During the measurements a large windscreen covered the microphone to dampen out the effect of unwanted wind-generated noise, but has no effect on the sound measurement readings. Before and after the measurements were taken, a Brtiel & Kjxr 4231 calibrator with certification traceable to the National Institute of Standards and Technology was used to calibrate the sound meter to ensure that the measured sound level readings were accurate. Table 2 shows the results of the measurements. The measurements were made at a height of 5 feet except those at Sites 3 and 4. Sites 3 and 4 were measured at 15 feet high, which is the height of the second floor residences in the mixed-use development. The measurements are presented in roughly chronological order, and are grouped by the purpose of the measurement. Measurements at different sites had different purposes. Each of the measurements is discussed following the table. 16-66 Mestre Greve Associates Woody's Wharf Division of Landrum & Brown Page 7 Table 2 Event Noise Measurements (dBA) Site Start Time End Time Leq Lmax Purpose Site 5 11:00 P.M. 11:15 P.M. 69.0 84.0 Parking lot Site 6 11:00 P.M. 11:15 p.m. 66.5 80.8 Newport Boulevard Site 1 12:03 a.m. 12:14 a.m. 60.0 64.6 Woody dock - deck open Site 2 12:25 a.m. 12:35 a.m. 60.7 69.6 Commonwealth dock Site 1 1:07 a.m. 1:17 a.m. 63.7 71.4 Woody dock - deck closed Site 2 1:14 a.m. 1:24 a.m. 61.4 69.3 Commonwealth dock Site 3 12:01 a.m. 12:16 a.m. 53.2 62.4 Mixed use residential Site 4 12:24 a.m. 12:39 a.m. 52.1 66.3 Mixed use residential Site 3 1:03 a.m. 1:18 a.m. 54.5 64.5 Mixed use residential Site 4 1:25 a.m. 1:40 a.m. 48.2 59.2 Mixed use residential Site 5: Edge of Woody's Wharf Parking Lot. This monitoring location was at the edge of Woody's Wharf parking lot near Newport Boulevard. The primary noise at this site was the traffic on Newport Boulevard. However, the peak noise levels were from people walking by on the sidewalk and yelling. One person caused a peak noise level of 80 dBA while another person reached 83 dBA. One person walking through the parking lot and yelling also reached 83 dBA. It was observed that all cars were valeted parked at Woody's Wharf and that no patrons hung-out in the parking lot. During the quieter traffic times some music corning from the Commonwealth could be heard. No music from Woody's Wharf could be heard, but some conversation from the line waiting to get into Woody's Wharf could occasionally be. heard. Site 6: Near the northeast corner of Newport Boulevard and 26th Street. This monitoring site was representative of the noise levels experienced by residences living along Newport Boulevard in the mixed-use development. The primary noise source was the traffic passing on Newport Boulevard. Cars passing by could reach 77 dBA. The Lmax of 80.8 was caused by a person yelling as he was walking on the sidewalk General aviation aircraft was also heard during this period. Sites 1 and 2: In the channel in front of Woody's Wharf and the Commonwealth. Site 1 was just off the south dock of Woody's Wharf and Site 2 was just off of the north dock of the Commonwealth. The noise measurements were made in an electric boat (essentially quiet). The boat did drift a little bit and its location had to be corrected occasionally. The measurements at Sites 1 and 2 were first made during the midnight hour with the outside deck at Woody's Wharf open with what appeared to be a capacity crowd on the outside deck. Late in the midnight 16-67 Mestre Greve Associates Woody's Wharf Division of Landrum & Brown Page 8 hour the operators at Woody's Wharf closed the outside deck area, and once the deck was cleared, the measurements were repeated during the one o'clock hour at Sites 1 and 2. The purpose of the second set of measurements was to see if closing the outside deck would have any effect on the noise levels. The outside deck is connected to the main bar area via a pair of doors. The outside deck is surrounded by a glass wall approximately 6 feet high that acts as a noise barrier. The music is located in the bar arca and can be heard in the outside deck area. During the first set of noise measurements with the outside deck open for patrons, noise from Woody's Wharf could not be heard, but could be heard from the Commonwealth. At Site I music from the Commonwealth was commonly in the 60 to 62 dBA range with a strong bass component. An inspection of the Commonwealth was not made, however, it appeared that doors from the Commonwealth bar were open and led to the bar area at the club. When the music was quieter, conversation from both Woody's Wharf and the Commonwealth could be heard at Site 1 . The conversation noise from Woody's Wharf appeared to be from the area on the south side of the building, and not the outside deck area. The measurement at Site 2 (with the outside deck open) had similar results to Site 1 in that music from the Coinmonwealth could be heard but music from Woody's Wharf was inaudible. During the midnight hour measurement at Site 2, an apparent patron came out onto the Commnonwealth dock and was yelling. His yelling was responsible for the Lmax of 69.6 dBA. During the second set of measurements at Sites 1 and 2; the outside patio area at Woody's Wharf was not in use and the doors connecting it to the bar room were closed. The noise levels at Site 1 were slightly higher during this second set of measurements. For example, the Leq noise levels at Site I went from 60.0 dBA when the outside deck was open to 63.7 dBA when the outside deck was closed. It appeared that the music was being played louder at the Commonwealth. Music from the Commonwealth was the dominant noise source. Conversation from the Commonwealth could be clearly heard and a minor amount of conversation from Woody's Wharf when the music was not being played. The results were similar at Site 2. The Leq noise levels increased from 60.7 dBA with the deck open to 61.4 dBA with the deck closed. Again, the music from the Commonwealth was the dominant noise source, and music from Woody's Wharf was inaudible. The Lmax noise level was again due to a person at the Commonwealth yelling. The average noise levels for the secondmeasurement at Site 2 was also slightly louder than the first due to the music being played slightly louder at the Commonwealth. But this also clearly shows that the noise from the outside deck area is insignificant and not contributing adversely to overall community noise levels. During the measurement at Site 2, patrons boarded a boat at Woody's Wharf and motored away and it was not audible. Tt should be noted that after each measurement set, the noise technician went inside Woody's Wharf to confirm that music was being playing at a level consistent throughout the night and in a manner typical for live DJ music (i.e.,loud). Sites 3 and 4: At the residences in the mixed-use development. Site 3 is the most southerly of the two residential sites and is the closest to Woody's Wharf. During the first measurement the Leq was 53.2 dBA, which is slightly above the noise ordinance criteria of 50 dBA. (The Lmax ordinance criterion of 70 dBA was never exceeded at Sites 3 or 4.) During the first measurement at Site 3 voices from a boat docked at the Commonwealth 16-68 Mestre Greve Associates Woody's Wharf Division of Landrum & Brown Page 9 could clearly be heard and was generally in the range of 53 to 58 clBA but going up as high as 62 dBA. The "boom boom" from music could faintly be heard and was generally around 53 dBA. This music noise was from the Commonwealth, and operations at the Commonwealth were the reason that noise levels (Leq) were above 50 dBA at this location. During the first measurement set, the noise levels at Site 4 were similar to those at Site 3, but were due to different sources. At Site 4 distant traffic was audible an around 47 dBA. A boat passed by in the channel (62 dBA),a helicopter flew overhead (66 clBA), and general aviation aircraft (48 dBA) could be heard in the distance. Voices at the boat clocks of the Commonwealth could be heard briefly and were about 50 dBA. Music was occasionally audible at Site 4. The noise ordinance level of 50 dBA was exceeded at Site 4 by 2.1 clB during this measurement period. However, it was clear that the noise was above 50 cIBA due to the helicopter flyover and boat pass-by and not anything associated with the restaurants/bars in the area. it should be noted that between Sites 3 and 4, music was being played inside one of the boats docked. The music could be clearly heard for about 70 feet in both directions along the boardwalk,but could not be heard at either Sites 3 or 4. The measurements at Sites 3 and 4 were repeated with the outside deck at Woody's Wharf closed. The measurements at Site 3 were slightly higher during the second set of measurements. Observations during this period included music from a boat in the channel (57 dBA), voices on boat docked at Commonwealth (ranging from 61 to 64 cIBA),music from boat or bars (54 dBA), low bass music most likely from the Commonwealth (54 dBA). The measurements at Site 4 were slightly lower during the second set of measurements. Observations during this period include unidentifiable music from the bar area (49 dBA) and activity from people on the boardwalk (47 to 54 dBA). in general, this was a very quiet period with the distant ocean waves and distant traffic being audible. 1 .5 Summary and Coo•6uslons Below is a summary of pertinent observations and conclusions based on our noise measurements. I. The parking lot is well managed at Woody's Wharf with valet parking and patrons not being allowed to loiter in the lot. (This is a common source of noise complaints from residents.) 2. Patrons coming and going from Woody's Wharf are no louder than people walking along the public sidewalk. 3. Noise levels along Newport Boulevard and experienced at residences along Newport Boulevard can be loud, specifically with average noise levels(Leq) being in the upper 60 dBA range. 4. Music from Woody's Wharf is well. contained within the structure and the outside deck area with glass barrier. Music from Woody's Wharf was not audible. 5. Closing the outside deck at Woody's Wharf had no effect on the noise levels. This confirms that noise from the outside deck in surrounding areas is negligible. If the noise. levels had gone down when the deck was closed, then that would be a strong indication that the noise from Woody's Wharf was a significant contributor to the outside noise levels. However, the noise levels actually went up slightly indicating that Woody's 16-69 Mestre Greve Associates Woody's Wharf Division of Landrum & Brown Page 10 Wharf was not a significant noise source and our observation was that the Commonwealth had increased the level of their music slightly. 6. Music and noise from the clocks of the Commonwealth are audible at the mixed-use residences. At times these sources of noise may exceed 50 dBA (Leq). At other times they may be audible, but not above 50 dBA (Leq). 7. The practice at Woody's Wharf of limiting dock use to patrons arriving and departing on boats (no loitering on boats) appears to be very beneficial to reducing noise levels in the surrounding areas and should be practiced at other bars and restaurants in the area. 8. No noise specific to Woody's Wharf was ever identified at the mixed-use residences. Noise from Woody's Wharf is not audible at the mixed-use residences. Noise from the Commonwealth, local roadways, distant roadways, and the surf were all heard. Noise from Woody's Wharf was not heard. 9. Noise levels at the mixed-use residences can be above 50 dBA (Leq) due to sources in the area other than bars and restaurants. Helicopter overflights, activities on the docks in front of the mixed-use area, activities on the boardwalk, and boats in the channel can all cause noise levels to go above 50 dBA (Leq). 16-70 Attachment F Proposed Late-Hour Floor Plan 16-71 BEFORE 10pm ASSESSMENT, 6V/ PARKING ® 1/40sf nesw ein.wewA,e� BAR / RECEPTION AREA - 270 Sf REO. PARKING 0 1/4D 6,75 STALLS x � PLUMBING OCC, LOAD 0 1/30 400 OCC. (� EGRESS OCC. LOAD 0 1/5 54.00 OCT. -- -- BAR DINING AREA - 111 SF REO. PARKING 0 1/40 2.77 STALLS PLUMBING OCC. LOAD 0 1/30 3.70 OCC. ITER; EGRESS OCC. LOAD 0 1/15 7.40 OCC. 10 PM - — - xAl.,x.�7ttn I INDOOR DINING AREA -Sfil SF BAR • REO. PARKING 0 1/40 14AB STALLS PLUMBING OCC. LOAD 0 1/30 18.90 OCC. (E)OFFICE BEFORE 10 PM M EGRESS OCC. WAD 0 1/15 37,60 OCC. OFFICE/KITCHEN - 1008 SF LL NEi PATG DINING ARFA- 709 SF N 4 m PATIO DINING AREA - 7D9 SF(531 IS 0 752) NET PATIO STA IDINGIAREA-Pm 439.5 S k a REO. PARKING 0 1/40, 752 OF AREA 13.29 STALLS "F NET PA 10 GINNING AREA - 242 F ~ ¢ O PLUMBING OCC. WAD® 1/3D 23.63 OCG C •Z =F'° EGRESS OCC. LOAD® 1/15 47.27 OCG •W 3:Q 2 R KITCHEN AREA, LESS CQDKTOP + OFFICE - 1008 SF •DO J)Ir O ED REO. PARKING NA, (E) KITCHEN �-F PLUMBING OCC. LOAD 0 1/200 504 OCT. xN QQ Q EGRESS OCC. LOAD® 1/200 5.04 OCG •Q OF Z O w a BEFORE 10 PM SUMMARY •0 OW PARKING REQ. 37 / PROVIDED 40 �M N Z PLUMBING OCC. LOAD 61 /MAX ALLO-WED IOD PLUMBING FIND MEN 1+1 REQ.,WHEN 2 REO. & 3/2 PROVIDED STAGE • �"i EGRESS OCG LOAD 152 - /DJll,:NET BEFORE 10 PM NET INDOOR DINNING ARE4-56] SFAFTER TDpm ASSESSMENT W/ PARKING ® 1/40st & 1/49tt AFTER 10 PM INDOOR DANCING AREA-430 SF NET INDOOR DINNING AREA - 137 SF ° DANCING AREA IN DINING ROOM 423 SF } DANCING EGRESS OCC. LOAD 0 1/5 84.6 OCC. ° PARKING RED. 0 1/4 EGRESS OCG 21.15 STALLS DANCING PLMG. LOAD 0 1/154 262 DEC. 9vt¢II¢I Gb REDUCED DINING RODIA AREA 144 SF ; I""mm ivis io DINING ROOM EGRESS DCC.LOAD01/15 9.6 OCC. NET BAR/RECEPTION AREA - 270 SE ; PARKING REO. ® 1/40 Sf 3.6 STALLS NET BAR DINING DINING PLMG. LOAD 0 1/30 4.8 OCC. § AREA-111 SF ; STANDING AREA IN PATIO 439.5 SF - BAR STANDING EGRESS OCT. LOAD 0 1/5 87.9 OCC. ° PARKING REO.0 1/4 EGRESS OCC. 22 STALLS STANDING POAG. LOAD 0 1/150 2M OCG T— � v PATO DINING AREA 242 SF °y 5 PATIO DINING EGRESS OCC. LOAD01/15 16.1 OCC. PARKING REO. 0 1/40SF&75:°AREA 4.5 STALLS --------- ----------------- _—__—__—_ _— DINING ROAD. LOAD 0 1/30 8.1 OCC, aux m, AFTER 10 PM SUMMARY ° PARKING REQ. 51 /PROVIDED 47 • �xnv PLUMBING OCC. LOAD 89/ MAK ALLOWED 100 AFTER 10:00 PM SEATING PLAN > °DOE ASSEfi VEl PLUMBING FIXT, MEN 1+1 REO..WOMEN 2 REQ. &3/2 PROPIDED SCALE:11- 9-EGRESS OCC,LOAD 265 ° Al 16-72 Attachment G Project Plans- Site Plan and Floor Plan 16-73 J TOT A L CON-CE PT xrruE and D E SSG N S ARMOR BANARM _ /ueRrvlmw a rvunamm ,E- ---�----� G-10 3 G o. mrtnnue ms I m----------- ARCHITECTURAL-SITE PLAN 6(IffiII.LWPS .•nnam¢ wr•wwotnc� my � � ��e � Mw.= 0 DISABLED PARKING 1 DISABLED SIGN 2 DISABLED STALL SIGN 3 _- Al SAN Tor A L ® ® CONCEPT DESIGNS vm •J6• �' ,.a ®`«.Wei. ne�s.,w.v - X I KL.Mlru9 YnT.16 WWI•�� • „W.A OYaYCJ ® o 0 vrar. g-R111 R 11111 H= Ll � i • ; Ancillary Outdoor Patio-Highlighted ® ® , ■ 4 v – N ® in Yellow E 1 �— ..e.�.�:d.M:�.. om,va occur.xcr a..r.ar mx..sn ra asi..o.ww n:ner.r ,:•m'•"'•"::•`"® oas+n,a...,n m voT.a..wm w ••'•'•••�•,• ' •�����"`.•.w ...... �.:.., ,........». r«n.0 eaa.wein m em,rr wV.w. ® ® � ..tt anm.,w..uwe. TmM 41 GLT.4 Ypr iprK IX4PMGf: 106 ® �uMa,.n..a w.mmsu•ro.,..,.T%Vt iOfALQL!' I•M.LT: W® m 'j FLOOR PLAN A-2 =� n " L________ n -.. 1 _ O CTN CEPT ff 1 f 71 DESIGNS � r4� m _ tuc0 Imm 9 PLAN VIEW-PATIO GLASS WALLHE 1 it F. b ON 10 ELEVATION-PATIO GLASS WALL `� "�' 2w 7 DETAIL ad .mims� .wu • wYo-viu werei.^rt�- � e p °w^ A A-4 16 °�^ 12 DETAIL 4 !' Attachment H Vicinity Map 16-77 VICINITY MAP Project Site 2318 Newport Blvd GENERAL PLAN and ZONING COASTAL LAND USE PLAN y4 4° 9 0.i V6 ¢a';•i' •0.0.0.;0.90.b 1a *\ q um eo-oPk'`0. *0.\•��\ �\'tel � w..0.° °w, M LOCATION GENERAL PLAN and ZONING CURRENT USE COASTAL LAND USE PLAN MU-W2 MU-W2 ON-SITE (Mixed-Use Water Related) (Mixed-Use Water Woody's Wharf Restaurant Related Restaurant, with Commercial and NORTH MU-W2 and MU-W d-UseMU-WResidential Uses Beyond and (Mixed-Use Water SOUTH (Mixed-Use Water Related) Related) To the South-Commercial Buildings Vacant The Rhine Channel and CM(Marine The Rhine Channel and EAST Commercial)and RM(Multi-Unit CM(Marine Commercial) The Rhine and Residential) and RM(Multi-Unit Lido Peninsula Beyond Residential Public Right-of-Way with Municipal Municipal Parking Lot and Municipal Parking Lots and WEST Parking Lot and R-1 (Single-Unit R-1 (Single-Unit Residential Uses Beyond Residential) Residential) Beyond 16-78 Attachment I Newport Bay Marina Building Elevation 16-79 Building "H" North Elevation (Facing Woody's Wharf) Building "A" North Elevation (Facing Woody's Wharf Parking Lot) rM 77 waxer _ � �ewa�ct as F M 7 A Building; "H" North Elevation (Facing Woody's Wharf) 35-Foot High Wall Tr+ (Approx.) Nor I IIINPOM MIN) T' b Itilp 'kl nay PA49 IPF 900P FV" rt I 12 Foot High 12 Foot I Combination Plexi- CombinatioGlass/Sound Wall Glass/Soun 16-80 Attachment J Correspondence Received 16-81 From: K Stoddard <kstoddard112@gmail.com> Sent: Friday, September 18, 2015 12:40 PM To: Dept - City Council; Brown, Leilani Subject: Woody's Wharf's Use Permit Amendment Newport Beach City Council Members, We owners of the thirty-five residential units of the 28th Street Marina remain opposed to any expansion of Woody's nightclub operation. A nightclub in a mixed use area is an inappropriate land use and it violates the General Plan. Woody's now wants dancing and the use of its outdoor dining area until 2 AM on Thursday nights in addition to the Friday and Saturday nights that it already has. Woody's also wants dancing and the use of its outdoor dining area until 2 AM on twelve additional, non-specified, nights throughout the year. This is simply a move by Woody's to increase its usable floor space by 62%, on 64 additional nights per year, so it can serve more alcohol to more people. It is as simple as that. Food service stops at approximately 10 PM and the outdoor dining area becomes a non-permitted outdoor drinking area. (Phone calls to Woody's have confirmed that food service stops at approximately 10 PM nightly.) Regarding the twelve additional non-specified nights per year, the way this is proposed is a nightmare and will be unenforceable. The intent is for Woody's to notify the Planning Department in writing 24 hours prior to any additional night they intend to have dancing and the use of the outdoor drinking area until 2 AM. The Planning Department cannot deny it because Woody's does not have to seek approval. Woody's determines the nights. The Planning Department then notifies the Police Department and Code Enforcement. The City must then track these nights to ensure that Woody's does not exceed twelve in a year. Even if Woody's provides the full 24 hours of required notice, the likelihood that this information will filter its way down through various city departments and reach the police officers working the night shift, all within 24 hours, is unlikely. It is highly probable that the police officers will not receive the information. It is also probable that Woody's will, on occasion, "forget" to provide the 24 hours notice at all and will simply tell the arriving officers on an unscheduled night that it is one of the twelve allowed nights and that they forgot to notify Planning. Every night Woody's "forgets" is a free night and not one of the twelve. Wood's is good at this game. The Police Department will see this additional twelve night condition as unenforceable and this will degenerate into Woody's being able to have dancing and the use of its outdoor drinking area until 2 AM any night it wants. This does not have to be complicated. Why not have Woody's specify in writing, now, what those twelve additional nights will be every year? This would require no tracking on the part of the City and everyone would know, up front and in advance, every year, what those nights are. The General Plan states that all mixed use areas will be "highly livable for the residents". How can anyone say that this amendment won't result in serving more alcohol to more people and thereby t 16-82 increase the incidence of drunkenness, public urination, theft, assaults, etc. in an area that already has the highest crime rate and the highest concentration of ABC licenses in the City? How does this amendment benefit anyone other than Woody's itself? It doesn't. Have the Council Members ever personally visited the area around Woody's at I AM on a Friday or Saturday night to see what the area is really like? You would be shocked. We believe this use permit amendment is the direct product of the settlement agreement between Woody's and the City. The City sees that approving this amendment is a no cost resolution to the litigation. There may be no hard dollar cost but there is a soft dollar cost. The cost is guaranteed further degradation of the area and the cost will, once again, be born by the residents in lower property values and in a lower quality of life. Taking the easy way out of this litigation now will also result in more crime and a greater resource drain on the Police Department. If this amendment is approved, it will undoubtedly result in more calls to the Police Department for noise, fights and drunks at Woody's. How many additional drunk drivers will result from this amendment? More alcohol served to more people. How can anyone defend that and say it is good for the area? The area is virtually out of control now as it regards crime and alcohol consumption. Approving this amendment can only increase the crime and the number of problems we residents face on a daily basis. You are supposed to represent the residents and the businesses, not just the businesses. How can passing this use permit amendment not be counter to what the General Plans states? Your vote will either cause the area to degrade further or it will be one step toward area improvement. The responsibility is yours. Will you do the right thing and be part of the solution or take the easy path and allow the area to deteriorate further? Kent Stoddard 28th Street Marina 2 16-83 From: Ramirez, Gregg Sent: Friday, September 18, 2015 2:47 PM To: City Clerk's Office; Brown, Leilani Cc: Brandt, Kim Subject: FW:Woody's Wharf Use Permit Amendment Please distribute. Thank you From: laithezzet@aol.com [mai Ito:laithezzet@aol.com] Sent: Friday, September 18, 2015 2:43 PM To: Ramirez, Gregg Subject: Woody's Wharf Use Permit Amendment I have lived at the 28th Street Marina, near Woody's Wharf, for over 20 years and Woody's has been a constant nuisance during that time. For over 10 years I served on the HOA Board and complaints about Woody's noise was a constant problem from our residents. As a Board we met with representatives of Woody's to try to address the problems without success. Noise has been a habitual problem, both from the music being played and from the yelling of the voices in the crowd, particularly on the outdoor patio. Additionally, I have observed drunks from the establishment walk out of Woody's and into our parking garage and urinate in our parking garage. The noise from Woody's during the particularly loud summer months has forced me to leave town on many weekends to avoid a sleepless night in Newport next to Woody's. The police have been called late in the night to address noise complaints at Woody's numerous times over the years by our Association's residents. I can assure you that residents are hesitant tcall the police and that the number of calls is a tiny fraction of the number of sleepless nights that Woody's has caused. Please do not approve a further expansion of Woody's hours, it will only cause us further pain. I understand this matter is scheduled for consideration at a public hearing on September 22 and I request that this letter be shared with the City Council members. Laith Ezzet 28th Street Marina t 16-84 From: City Clerk's Office Sent: Monday, September 21, 2015 1:23 PM To: McDonald, Cristal; Mulvey, Jennifer; Rieff, Kim Subject: FW: FOR THE PUBLIC RECORD RE. PROPOSED WOODY'S EXPANSION Importance: High Sensitivity: Confidential From: Denys ObermanyF�e_ _-_.__. Sent: Monday, September 21, 2015 1:23:00 PM (UTC-08:00) Pacific Time (US & Canada) To: Dept- City Council Cc: City Clerk's Office; Denys H. Oberman; Wetherholt, Drew; 'Linda Klein'; K. Stoddard; kbranmanCalgmail.com Subject: FOR THE PUBLIC RECORD RE. PROPOSED WOODY'S EXPANSION Mayor and Members of the Council: We are writing this letter to voice Objection to the settlement and permit provisions providing for the expanded hours and operation of Woody's bar and restaurant, located on the Balboa Penninsula. This operator,for many years, has perpetuated behavior causing late night Nuisance to the neighborhoods in the area and dangerous behavior from client drunkeness causing safety risk to our community and the city. Calls for service to the NBPD and other complaint documentation are evidenced in numerous testimonials by residents and PD. We understand the City's desire to accomplish a settlement when it did not prevail in litigation due to a technical error.However, this is a case where the proposed permit not only continues to enable a problematic operator, but proposes to afford operating conditions of an unwise, unsafe nature. In addition to the late night (2 am) outside operation and dancing, the permit proposes to allow 12 NONSPECIFIC DAYS when these hours and type of operation are permitted, in addition to other days where late night outside patio noise is proposed as allowed. It is unwise to have this or any other operator be able to at entirely its own discretion select dates and times to engage in a form of operation that creates inherent Nuisances, disturbance and unsafe conditions impacting the surrounding residential neighborhoods. The City perpetually has a practice of providing ill-conceived special conditions to various parties on an inconsistent basis----which almost always backfires, to the detriment of both the Community and the City. PLEASE, RECONSIDER AND DO NOT GO DOWN THIS PATH. The Community for well over a decade has asked the City to maintain the safety and integrity of its residential areas in the Lido/Balboa Penninsula area, and in particular to STOP THE OVER-CONCENTRATION OF USES CAUSING DETRIMENTAL IMPACT TO THE SURROUNDING NEIGHBORHOODS. We respectfully ask that the City go back to the drawing board and not approve the proposed hours and type of operation---for the safety and integrity of the entire surrounding community. t 16-85 This would be consistent with the will of the people, and also help eliminate the inordinate burden that this operator has proven to cause. Thank you. Denys Oberman Resident and stakeholder, Balboa Penninsula .................................................................................................................................. Regards, Denys H. Oberman, CEO/� A, ©BERMAN Sharegy and Finanddl Advisers OBERMAN Strategy and Financial Advisors 2600 Michelson Drive, Suite 1700 Irvine, CA 92612 Tel (949)476-0790 Cell (949)230-5868 Fax(949) 752-8935 Email: dho(a)obermanassociates.com CONFIDENTIALITY NOTICE: The documents accompanying this transmission contain confidential information belonging to the sender which is legally privileged. The information is intended only for the use of the individual or entity named above. If you are not the intended recipient,you are hereby notified that any disclosure,copying,distribution or the taking of any action in reliance on the contents of this telecopied information is strictly prohibited. If you have received this transmission in error,please notify us immediately at 9491476.0790 or the electronic address above,to arrange for the return of the document(s)to us. 2 16-86 September 22, 2015, Council Agenda Item 14 Comments The following comments an item on the Newport Beach City Council agenda are submitted by: Jim Mosher( iimmosher(o)vahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 14. Woody's Wharf Use Permit Amendment located at 2318 Newport Boulevard (PA2015-158) The Woody's Wharf matter has always been a strange item. My recollection is that when the attempt to legitimize their past unpermitted activities came before the Planning Commission in 2013, the main argument of their attorney, Roger Diamond, (which made little sense to me) was that by engaging in the activities for so long without permits (for dancing and live music, as I recall) Woody's had acquired a vested right compelling the City to issue a permit for the same. The Planning Commission reached a kind of compromise with them. I believe that if a citizen had appealed the PC decision to the Council, as the Municipal Code permitted, there would have been legitimate reasons for the Council to find that the past history was irrelevant and that at the time of the then-current application a nightclub-like operation was incompatible with the existing and planned nearby residential land uses. However, ignoring the provisions of the then-existent Municipal Code, clearly requiring appeals of Planning Commission decisions to be on City forms and accompanied by an appeal fee, then-Council Member Mike Henn appealed the matter by email, thereby (per the Code) declaring himself to be an "interested" party objecting to the Planning Commission decision —a position which he then argued to the rest of the Council. Mr. Diamond understandably sought judicial relief from those actions and as I understand it Councilman Henn's appeal was invalidated by the Appeals Court (since it violated the City's own codes), although they left unresolved the question of whether an interested party could sit in judgment on a matter they were interested in. In the sense of the City ignoring its own codes, the present item seems to me like "deja vu all over again." Title 20 of the Municipal Code (that is, our Zoning Code) is clear that the review authority for Conditional Use Permit applications is either an independent Hearing Officer, for permits in residential areas, or the Planning Commission for all other CUP's. See specifically, Table 5-1 ("Review Authority") of Chapter 20.50, Section 20.52.020 ("Conditional Use Permits and Minor Use Permits"), Section 20.60.020 ("City Council"), Section 20.60.030 ("Planning Commission") and Section 20.54.070 ("Changes to an Approved Project" —"A proposed change that does not comply with the criteria identified in subsection (8) of this section (Minor Changes Approved by the Director Without a Public Hearing) may only be approved by the original review authority for the project through a new permit application filed and processed in compliance with Chapter 20.50"). The City Council does (per Section 20.60.020.A.2) have a role in hearing appeals of the Planning Commission's Conditional Use Permit decisions, but assuming the September 5, 2013, Planning Commission decision still stands (as the staff report says it does), the 14-day window for appealing it has long lapsed. 16-87 September 22, 2015, Council Item 14 Comments - Jim Mosher Page 2 of 2 Yet the matter is being oddly presented as if Woody's is appealing the 2013 PC decision, but when or how they made the appeal, or filed a new application, is not stated —that is, I am unable to find a written application or request from Woody's. While it is true that Condition 18 of the existing CUP (the present Attachment No. CC 3) reserves to the Council (and the PC) the right to modify or revoke the PC-granted CUP, that is only for the purpose of tightening the conditions to deal with a nuisance situation. The request here, however and by whomever it was made, is clearly for a relaxation of the PC- granted conditions, which would seem to come under the purview of existing Condition 20: that is it requires either an amendment to the PC-granted CUP or the processing of anew CUP. In either case, the proper review authority, under our Zoning Code, is the Planning Commission. In my view, the City Council should be hearing this matter only on appeal. That said, here are some specific comments on the Draft Resolution of Approval (Attachment No. CC 1) which I think should be presented to the Planning Commission rather than the City Council: 1. Page 2: There seems to be word missing in the final "Whereas": "WHEREAS, a public hearing before the City Council was held on September 22, 2015, in the City Hall Council Chambers, 100 Civic Center Drive, Newport Beach, California." 2. Pages 6-7: The reason for renumbering the CUP from "UP2011-010" to "UP2015-158" is not explained, and awkward at best since the first paragraph on page 7 says UP2011- 010 will become null and void with this approval, yet UP2011-010 is repeatedly referred to in the Conditions of Approval (Exhibit "A"). 3. Page 8: A special "12 other nights" is referred to in several conditions (for example, 3, 34, and 48). Are these the same 12 nights, or can different sets of 12 be chosen with regard to different conditions? Wouldn't it be better to put all the conditions related to them in one place? 4. Page 8: The intent of the amended Condition 6 is unclear. Is there a minimum number of hours the applicant has to provide meal service? Or is it totally up to their discretion as long as it, by some unstated measure, remains their "principal business"? 5. Page 10: Although primarily carried over from the PC approval, Condition 24 strikes me as rather strange. How is the applicant supposed to clean the outdoor areas? Or is the City telling them to leave them uncleaned? If they never clean won't the Health Department complain? 6. Page 11: In Condition 26, who defines what "the interior of a residential structure" is? Is it with the doors/windows open or closed? 7. Page 14: Condition 58 seems to be repetitive of Condition 45. Shouldn't they be combined? 16-88 -----Original Message----- From: Paul Astbury[mailto:paulastbury7@gmail.comj Sent:Tuesday, October 6, 2015 2:13 PM To: Dept-City Council Subject:WOODY'S WHARF AGREEMENT Council Members: My wife and I are Canadian Citizens and Seasonal Residents in Southern California. Woody's is one of our frequent stops for Lunch, Sunday Brunch or whenever the spirit moves us and definitely when we have guests from out of the country. It is part of the Fabric of the Community that makes up Newport Beach. It is always a friendly place where you can meet and chat with the Owners, meet the Locals and even have your concerns responded to by Local concerned Council Members like Duffy Duffield. We are sure Chuck Norris will be proud when you arrive at an Amicable Agreement next Tuesday the 13th and we will all be waiting to raise our glasses up. We will be in residence in Laguna Woods on the 21st of November. Cheers from Canada and to continued good times at WOODY'S WHARF. Paul Astbury and Joanie Kirkpatrick 16-89 From: City Clerk's Office Sent: Monday, October 05, 2015 1:47 PM To: McDonald, Cristal; Mulvey, Jennifer; Rieff, Kim Subject: FW: Woody's Wharf From: Kiff, Dave Sent: Monday, October 05, 2015 1:47:17 PM (UTC-08:00) Pacific Time (US &Canada) To: City Clerk's Office Subject: FW: Woody's Wharf From: Kathy Biava (mailto:kathy(@uoiweb.com] Sent; Monday, October 5, 2015 1:42 PM To: Dept - City Council Subject: Woody's Wharf Please consider all options to keep Woody's operating-and with entertainment. Thank you Best regards, Kathy Kathleen Lowrey Blava President Universal Odyssey, Inc. 2618 San Miguel Dr. Suite#476 Newport Beach, CA 92660 USA 949 263-1222 (direct) FAX 949 263-0983 kathv(auoiweb.com visit us at: www.universalodyssey.com 1 16-90 From: Kiff, Dave Sent: Monday, October 05, 2015 11:51 AM To: City Clerk's Office Subject: FW: Woody's Wharf- application to amend existing use permit -----Original Message----- From: Thomas Macedo Imailto:tmacedoftme.com] Sent: Sunday, October 4, 2015 1:06 PM To: Dept-City Council Subject: Woody's Wharf-application to amend existing use permit Dear Council Members, I am writing to you to voice my strong opposition to the pending application by Woody's Wharf to amend its use permit to allow dancing and the use of its patio on Thursday nights until 2:00 am. Thank you for your attention to my concerns. Regards, Thomas A. Macedo 2700 Newport Blvd.Apt 321, Newport Beach t 16-91 From: Kiff, Dave Sent: Monday, October 05, 2015 11:06 AM To: Brown, Leilani Subject: FW: Woody's From: Cliff Atkinson [mailto:cliff38Calgmail.com] Sent: Monday, October 5, 2015 9:21 AM To: Dept- City Council Subject: Woody's THANK YOU ALL FOR SUPPORTING WOODY'S WART, YOU HAVE DONE THE RIGHT THING. NEWPORT BEACH RESIDENT, CLIFF ATKINSON i 16-92 From: Kiff, Dave Sent: Monday, October 05, 2015 11:05 AM To: Brown, Leilani Subject: FW: Woody's Wharf -----Original Message----- From: Bruce Fetter (mailto:brucefetter4@gmail.com] Sent: Monday, October 5, 2015 9:38 AM To: Dept-City Council Subject: Woody's Wharf Glad to see this is settled and that we will have the continued opportunity to enjoy Woody's in the coming years. Between the Lido Village development and the property adjacent to Woody's it is exciting to see progress on the forefront,just not at the expense of existing businesses. Good luck with all of this, Bruce Fetter 1 16-93 From: Kiff, Dave Sent: Monday, October 05, 2015 11:05 AM To: Brown, Leilani Subject: FW: Good job reaching a settlement with Woody's Wharf. From: Geri Duquette [mailto:gduouette(a)cookseylaw.com] Sent: Monday, October 5, 2015 9:41 AM To: Dept- City Council Subject: Good job reaching a settlement with Woody's Wharf. Neighborhood icons like Woody's must be preserved and respected. 06e z, a 94 Tierra Montanosa Rancho Santa Margarita,CA 92688 Cell: 714-552-2181 Work: 714-431-1046 Fax: 714-431-1119 E-mail: gduauette(2cooksevlaw.com CONFIDENTIAL INFORMATION This a-mail transmission contains confidential information which is intended only for the addressee and which may he privileged under applicable lar. Do not read,copy or disseminate it ifyou are not the addressee. Ifyou have received this message in error,please notify the sender immediately and delete it. Thank you. 1 16-94 Attachment K Newport Bay Marina Correspondence (Dart) 16-95 Ramirez, Gregg From: Torres, Michael Sent: Friday, September 25, 2015 8:11 AM To: Brown, Leilani Subject: FW:Woody's Wharf Use Permit Amendment request No. UP2011-010 Attachments: Newport Bay Marina Units within 100 feet of PL.pdf From: McKitterick, Gary [mailto:gmckitterick@allenmatkins.com] Sent: Thursday, September 24, 2015 9:52 AM To: Brandt, Kim Cc: Harp, Aaron; Torres, Michael; Diane Dixon; Mills Consulting; McKitterick, Gary Subject: FW: Woody's Wharf Use Permit Amendment request No. UP2011-010 Kim, For the record and staff report here are drawings that show my clients residential units closest to Woody's. From: Diana Vanderwall [mailto:diana.vanderwall@dart.biz] Sent:Thursday,September 24, 2015 9:23 AM To:Steve Mills<steve@millsconsulting.net> Cc: McKitterick, Gary<gmckitterickC@allenmatkins.com> Subject: RE: Woody's Wharf Use Permit Amendment request No. UP2011-010 The site plan summary and backup drawings are attached. DIANA VANDERWALL [ office manager—real estate ] 517.244.3001 office 517.244.3601 fax D A R T IDEVELOPMENT dartdevelopment.com On Sep 19, 2015, at 8:09 AM, McKitterick, Gary <wnckitterickgallenmatkins.com> wrote: Dear Diane and Tony, I will address the CC on Tuesday on behalf of my client who is adversely impacted by the late night noise and behavior of the immediately adjacent property. The expansion of operating 1 16-96 intensity for a business who already is non-compliant with existing rules is not good governance by the City. There are standards that should be objectively applied to maintain a livable balance for the citizens of Newport Beach. Please note the staff report) does not accurately describe the mixed use project owned by my client. Residential units are in close proximity to Woody's. The report does not make a proper analysis of adverse impacts to our property. Ask the staff if they have conducted a noise and impact study? Remember in 2013 our property was a plan but in 2015 we are under construction and the staff must evaluate the most impacted property. The staff has failed to evaluate the impacts to our property. I also addressed the CC in October 2013 and incorporate my prior comments into the record for this hearing. I would ask the City to please make that transcript available to incorporate the objections. There is no compelling public benefit in expanding the operating hours of an establishment who has a track record of violations of the existing permits and numerous Police reports. To expand any operating hours will be a voluntary action by the City that will cause direct adverse impacts to my client's property. As a process issue, I am aware of the lawsuit and settlement and its probable influence on City decision makers. We certainly expect all CC members who received political donations from the owners of Woody's to make proper public disclosure prior to any hearing and follow conflict of interest rules. I do not have the emails of the other CC members but I have copied Mr. Harp who can forward Gary S. McKitterick Esq. Partner Allen Matkins Lack Gamble Mallory& Natsis LLP 1900 Main Street, 5th Floor, Irvine, CA 92614-7321 (949) 553-1313 (main) (949) 851-5432 (direct) 2 16-97 \ Newport Bay Marina 2300 Newport Blvd. Newport Beach, California \ E I -Bridgeport, LLC 100 feet \ 0 Q I JPF AREA 1 27 J 2:1 � I 9 ns Shared Property \ Line- I \ Woody's M M M M \ nvx[ 4 wu.w¢[v4mx sx4s*si PAon� 4 ♦wNAts*rm[ IMO W41. m' CN IOW SOE.fn.� 1�P 41W41 .r0 gIWV3E M. I I I BIL, A 1-0 AREA 1 I K Units within 100 feet of Woody's Building Location Unit# SF Distance to Property Line A Boulevard 1 2,778 35'-1" A Boulevard 2 2,798 58'-93/4" A Boulevard 3 2,825 81'-1134' G Waterfront 22 2,161 99'-11" G Waterfront 23 2,161 60.0' G Waterfront 24 2,073 99'-11" G Waterfront 25 2,073 60.0' H Waterfront 26 2,166 13'-21/2" H Waterfront 27 2,073 13'-21/2" 16-98 �l■1�1■1�1■1�1■1Sl■��/J�� MLWAS1� IME = ISM �� I�i�i'�11�1■��Il�a�li p° SEE•' Mal _ MM a- E:o:E i i IT:� . 1 IIM IN II w • -1_ Ir..'icT�Lar•! 'axe i i■!Ylrr�■! I 'fl ■� 1 (91�.t�El;Ni ,■ ■ ..a■®1�1� ,■ III I� �\ � .��+� .. I II'�II ILII I► IIIIJI bull 1111,11 II. I I! • .•w. l I�IIIIIIIM i �� IIIIIII� �IIIIIII ��IIIIIII� �IIIIIII��.�tl IIIIIII��IIIII ���I�„�jl'��' ww • ■ gygy ♦•••••♦'•IRI ••• ♦.. .. f 1 BUIL, �.♦ 1 ID � ` � ��II,O.•w•w,., ����11IH��1II�/®���h a�l� ■a� t" 4�i+. �I �ry.� e`gyyI.. ��r19.t�Crp li'F � ii■ ����w r 11I�L�i •���P:i�� ffi�[ M:e� � ^ ..� $�I�1�."1�3v�i� .:'��sSY 1C^LwW�.WMt WS'b2iWi.� a•�••�,;r SII �y �•� --�� SII �► o-�. ���© o '. r�,�A Q�• o ' �.;� ' 1.1 1.1 .� C�7Y• 1.1 ►.II:F� . ' ter• . 1• r.�r�1.11.1. - �V N, 11 a r�1 j 1,�All nn Ib ,i nn IIA IYi , •n IINIICn A• I , IICII„1� IIIIIYn ,� IIYIMI III 111 .r♦ nYI1tlII I�IIIII , All 111 All v:. Ilii ✓� IN�IIIII� �IIIIIC•� © �""! r� I19IIIII� �IIIIIYH I � ' IN ai ,iv a NN Q r a�pT,iIro a NN Q IN ^..t7 lid lAO.pp VFFI__IM �/ �, oo�DF Yyn•Ii1 �i/ii nn 3Y ,F?JIN oo qi �F oo /!/�11►�. F �'^ .a/ ///,/�► � & Y ji�%!► Oji rF �.o� � ,► n ' 4F DA Fi A� eft'II MEN �Fl Y. •• •• MI�iiiiiii�Gf fY � -. 2: =7 r—,1 .�.� I<r,2', ,,, ..,,,:7 �1- -� •• 1 �." AT .. PLL FIRE ]. SMPI WM FII .'1 9. fP0 Q< o] 2uIZw FLOC — wS w m I wlu SYM md' Q C (� 5 S � a G S LLS Q \\ aFa Ls > J OR y E V J e 5 V mmla ' mbale a. a a � metro Immlla mmoHa . ] a eP a eP ] e O O O O wll WLL WlL II FFjjpt�"W. WFp krv�K"W ' ] WFxI K"W a WFW K� 'W 4fJ I Q 1�'ll 4T�1 - PWL. � I I NG I I MIG I I iYdl MW Q Y ® Al ® E �Mt Nfft NSM 0 UNIT 1 UNIT 2 : UNIT 3 UNIT 4 . UNIT 5 UNIT 6 UNIT 7 I/AIIJ afcfY+fv w IRGEYaE9 N XECEYRn" REc x� RECE55EO'a / A f 5 Q a 5 m I I aaEn• arow• li I wa I hilm'a ru rw zw zw �nlfm wu ww THIRD PL.®OR PL,6,,N OIILRINS•A•SXIAL¢¢ FlED TI P LEMRPL FIRE SrSiFNll nNHILL 2E TIED rO T£ SHOKE�EiELT0R5 HIITiN EILX✓NIi. 16-101 �� a v-s• ' �� : .-.. os ; low Lgg- Ei, o il I m ji�, hp1�_ is ma 11 �/ a �i �� ► �: - is; e WWI FINE �11 IN flli� E�E �6�1© !9 ® m-r, © 3r 9 � ���� �� �•���Ilr �t �L�I�i 11J� i ° L � r�� �1:i•I� 1�� ta► G F. ea s itaii �taiisrtait� loll _�1�1�I11Llllil� ui D e^r 1 ilpl : .-I• C .-I• bJ � © ^' � ® �I •,g j .- IIIA NSM IIII �n�l NINON= � ,� 4� ` ' ° �I���� � � ■ i� ���I� � '-` is ® =I SUN 7 mm a aJ wo, ,s� iii ■'�G//: � . ��--- isi�.ui �YYY ILII �/�' � 5� C.:r ■ oCo ,.W, Va 01111 ILII :.- �//Jf✓r'�'�J/i�i."//. POO, irl-I ROM immil POO mvioullro"ON mm � U i i 6 I/r/rr r IIS i Tjkotoo�,,T'mv.Vol; J © D pezz �3 VOW Mill CifAc I�� ��+� m a ♦ I r r00, Of 06111 ZZ61 e: rn en rn 11♦ � I I „�.�- m ° IIID: �� _ �.-•• `� ': ���L�� o � IIS m 111111=Il, ii M L, Mum OFFICE 3 o' © a 1! Ila T. I�JQ ILi - <:•r �I� © . m o m"Mm. � � I ° oo © W - e �f m `II■��� II . a�ll■�I � � mu 10 IIG ivollo�go�� n mter— I+ ONI ■fill Om I CITY COUNCIL HEARING 10/8/2013 I. Introduction Good evening Mayor and Councilmembers. My name is Gary McKitterick, a partner in the law firm of Allen Matkins and a resident of Corona del Mar. I am here tonight representing NP BEACH MARINA LLC, the owner of the site located directly south of Woody's Warf. I would like to address several concerns. II. Orientation First, I want to orient you to my client's project and its location: • Slide 1 — What were are building. Our project is a first major step in revitalizing the Balboa Peninsula with a mixed use high quality project. • Slide 2 — Parking area location in Project. • Slide 3 — Google map location. • Slide 4 — Project Drawings with distance shown to residential. • Slide 5 — Facebook slide on opening Sunday at 9:30. III. Position 1. We were in process of a formal appeal of the Planning Commission approval of a Conditional Use Permit and Variance to change the operational characteristics of the existing restaurant. 2. The Council has a "Public Policy Decision" tonight. The operational characteristics approved by the Planning Commission for Woody's are inconsistent with the residential character of this area (specifically the residential component of our project that my client is currently constructing) and the relevant policies of the 2006 General Plan. On behalf of our client, we encourage a vote to reverse the Planning Commission decision and deny Conditional Use Permit No. UP2011-010 and Variance VA2013-006. 999077.01/oc 372416-00006/10513/gsm 16-107 3. First — Location. I need to correct a significant error in the Staff Report. Please see A-3 on page 12 of the Staff Report which states the residential uses associated with my client project are 100 feet away — that is not true. Our building is only a few feet away from the Woody's property line. The residential units in our Project are immediately adjacent. (Review slide.) 4. We assisted NPBeach Marina, LLC ("NB Marina") in the acquisition of the site directly to the south of Woody's Wharf and continuing all the way to the Newport Shipyard (the "Newport Marina Project") in November, 2012. At that time, Woody's Wharf had the right to operate as a restaurant (not a nightclub). The Newport Marina Project is zoned MU-W2 which under the 2006 General Plan Amendment allows marine related uses and residential on upper floors under the General Plan, this zoning is described as "Districts where residents and businesses are intermixed that are designed and planned to ensure compatibility among the uses, that they are highly liveable for residents, and are of high quality design reflecting the traditions of Newport Beach." 5. The action by the Planning Commission allows Woody's to operate in a manner that is incompatible with the intent of the General Plan and in conflict with the Newport Marina Project. Any expansion of use will be detrimental to the general welfare of the residential occupants in my client's project and in the neighborhood. We are also concerned about the Woody's property being under-parked which will also have a direct negative impact on my client's project. The CUP modification would have a significant negative impact on my client, an investor that has already committed to invest over $150,000,000 in Newport Beach. There are no buffers to mitigate the concerns we have with expanded uses at Woody's. 6. The extended hours on the outside patio (until 2:00 a.m.) the lack of parking and the introduction of dancing are of the utmost concern to us. The operations of a 999077.01/oc 372416-00006/10573/gsm -2- 16-108 restaurant and those of a nightclub are very different and have much different impacts on neighbors. A nightclub use in this residential area will lead to many problems such as crime, public intoxication and late-night noise issues. You have ample testimony on the current condition. The importance of behavior in the past is an indicator of the future. Please do not create additional conflicts. The consistent history of disregard by the owners/operators of the current restrictions are set forth in the memorandum from the Police Department attached to the Planning Commission Staff Report. (See Facebook slide.) 7. Parking Problem a. Woody's is under-parked per code and this creates a neighborhood issue. The "in lieu spaces" were granted 30 years ago in 1983 and suffice it to say, the character of the neighborhood has changed. They must be required to be parked to code. Look at the location of our client's parking area. (See slide.) Iv. Other 1. We relied on the General Plan in our acquisition in 2012. To remind the Council of the timing in July 2006 the General Plan was approved and in December 2006 this Project was approved. The expansion of use by Woody's is NOT consistent with the existing and expected residential character of the area and the relevant policies of the 2006 General Plan. The General Plan recognizes the need to protect "quality of life" and should the Planning Commission's decision stand, it will result in a major adverse economic impact on our project. 2. Staff Report. a. Page 12 Error 999077.01/OC 372416-00006/10573/gsm -3- 16-109 b. Page 28 Parking C. Pages 29, 30, (38 comments from Tucker) 3. We would support a 10:00 a.m. opening provided parking is to code on the site and the City imposes conditions to assure compliance with conditions. V. Conclusion 999077.01/oc 372416-00006/10573/gsm -4- 16-110 Allen Matkins Leck Gamble Mallory&Natsis LLP /� Ue 1�/�l r,W g-�� Attorneys at tree �2 a e. l�JLLLL�abL1rJ 1900 Main Street,5°'Floor I Irvine,CA 92614-7321 Telephone:949.553.1313 1 Facsimile:949.553.8354 www.allenmatkins.com Gare S.McKinerick E-mail:gmckiacrick@ailenmatkins.com Direct Dial:949.851.5432 File Number:999903-14000/OC1084861.01 Via Electronic Mail September 23, 2015 Honorable Mayor and Members of the City Council of Newport Beach Re: Woody's Wharf- 2318 Newport Boulevard,Newport Beach, CA Noise Code Violation Dear Council Members: I represent NPB'Marina LLC (doing business in California as NPBEACH:Marina LLC), the owner of the site located directly south of Woody's Wharf. My client is under construction on a major first class mixed-use,residential and commercial project. It came to my attention last week that the City has not analyzed the impact of noise generated by Woody's Wharf on properties located to the south of Woody's Wharf. On behalf of my client, we commissioned an acoustical analysis to determine the intruding noise levels due to the nighttime operation of Woody's Wharf restaurant/bar located immediately adjacent to-my client's property. Our expert, RS Acoustics, Inc., conducted noise level measurements in the nighttime and early morning hours on Thursday,September 17a', Friday, September 18"' and Saturday,September 19'h. I have enclosed a copy of the Acoustical Analysis. and Measurement Test Report prepared by RS Acoustics, Inc. on September 21, 2015 ("Acoustical Report"). The noise ordinance of the City of Newport Beach (City of Newport Beach Municipal Code Chapter 10,26,referred to in this letter as the "Noise Code") establishes specific noise standards for specific land use categories. The residential components of my client's property are designated noise Zone 1.1I, requiring the exterior noise level generated by Woody's Wharf after 10:00 p.m..to be no greater than 50 dB(A). As you will note in the Acoustical Report, during the nighttime, noise levels steadily increased after 10:00 p.m. until reaching their peak from approximately 11:30 p.m. to 12:00 a.m. and thereafter remaining fairly steady until 1:45 a.m. Noise levels measured at my client's residential properties significantly exceeded the.Noise Code standards during all tests. As shown in the Acoustical Report, noise levels generated by activity associated with Woody's Wharf exceed the Noise Code by more than 8 to 18 dB(A). It is alarming to note the magnitude of the Noise Code violations with noise levels at 1230 am. holding steady at 17 to 18 dB(A) in excess of the required standard of 50 dB(A). Los Angeles I Orange County I Son Diego I Century City I San Francisco 16-111 Allen Matkins Leck Gamble Mallory &Natsis LLP Attorneys at Law Honorable Mayor and Members of the City Council of Newport Beach September 23,2015 Page 2 According to Section 10.26.025 of the Noise Code "it is unlawful for any person at any location within the incorporated area of the City to create any noise, or to allow the creation of any noise on property owned, leased, occupied or otherwise controlled by such person, which causes the noise level when measured on any other property, to exceed either of the following: 1. The noise standard for the applicable zone for any fifteen-minute period; and 2. A maximum instantaneous noise level equal to the value of the noise standard plus twenty(20) DBA for any period of time(measured using A-weighed slow response)." The Acoustical Report shows a violation of both standards. Pursuant to Section 10.26.075 and 10.26.080 "any violation of this Chapter is declared to be a public nuisance". My client is investing tens of millions of dollars in a first-class mixed use development. The major code violation by Woody's Wharf, evidenced by the Acoustical Report,needs to be abated promptly. We are supportive of bars and restaurants in the area provided they operate under maximum compliance with noise standards and policies. Very tru y yours, r`C 4r Gary ; Me itterick GSM:mms cc: Kimberly Brandt, Community Development Director Gregg Ramirez, Senior Planner Aaron Harp, Esq. Michael Torres, Esq. Steve Mills Jerry Conrad 16-112 m��m m� m m� m RS ACOUSTICS INC 25031 Avenue Stanford, Suite 80 Santa Clarlta, CA 91355 P: (661) 251-3965 F: (661) 310-3783 NEWPORT BAY MARINA 2300 Newport Blvd. Newport Beach, CA ACOUSTICAL ANALYSIS & MEASUREMENT TEST REPORT Prepared for: Newport Beach Marina, LLC 2300 Newport Blvd. Newport Beach, CA Prepared by: RS Acoustics Inc. 25031 Avenue Stanford,Suite 80 Santa Clarita,CA 91355 Phone: (661) 251-3965 Fax: (661)310-3783 Date: 21 September 2015 Report No. 150921 This report presents the results of an acoustical analysis and noise measurement program conducted at the Newport Beach Marina project currently under construction at 2300 Newport Beach, California. Noise levels were measured to determine the intruding noise levels due to the nighttime operation of Woody's Wharf restaurant/bar located at 2318 Newport Blvd. immediately adjacent to the north of the Newport Beach Marina project. Consultants in Architectural Acoustics & Noise Control 16-113 RS ACOUSTICS INC 25031 Avenue Stanford, Suite 80 Santa Clarita, CA 91355 P: (661) 251-3965 F: (661) 310-3783 EXECUTIVE SUMMARY—NEWPORT BAY MARINA/WOODY'S WHARF Nighttime acoustical tests were conducted on Thursday Sept 17 through Saturday Sept 19 Thursday at the Newport Bay Marina project to determine noise levels generated by Woody's Wharf directly north of the project site. Measurements were conducted directly at the property line,the residential patios at the east elevation nearest the Woody's Wharf property line, and near the property line along the west elevation of the proposed mixed use,building. During the nighttime, noise levels steadily increased until reaching their peak at approximately 11:30 p.m.to 12;00 a.m.then remained fairly steady until 1:45 a.m. when Woody's Wharf closed. Noise levels measured at the residential properties exceeded the Leq-50 dB(A) nighttime Newport Beach noise standards during all tests. The table below shows the location of acoustical tests, time of measurements, and the amount of exceedance of the Newport Beach noise standards. Summary of Acoustical Test Results Nighttime Noise. Measured Levels Measurement Property During Woody's Noise Standard Location Type Standard Measurement Times Operation(15- Exceedance (15 min Leq) min —Leq) Property Line 10:00 pm—1:45 am 67—73 dB(A) 7—13 dB(A) near waterline Commercial 60 dB(A) (Thursday 9/17) 1:45am-2:00am 62 dB(A) 2dB(A) Level Patio— Residential/ East Elevation Mixed use 50 dB(A) 10:00 pm—12:00 am 58—65 dB(A) 8—15 dB(A) (Friday 9/18) Level 3 Patio— Residential/ 12:30 am—1:45 am 64-67 dB(A) 14-17 dB(A) East Elevation Mixed use 50 dB(A) (Friday 9/18) 1:45 am—2:00 am 60 dB(A) 10 dB(A) Level Patio— Residential/ 10:00 pm-1:45.am 63-68 dB(A) 13-18 dB(A) East Elevation Mixed use 50 dB(A) (Saturday 9/19) 1:45 am-2:00 am 62 dB(A) 12 dB(A) Property Line Residential/ near front of Mixed use SO d6(A) 12:15 am—12:30 am 62 dB(A) 12 d8(A) _ buildings. (Friday 9/18) Commercial 60 dB(A) 12:15 am-12:30 am 62 dB(A) 2dB(A). C:\Users\Public\Documents\Projects\Newport Bay Marina\Report\Executive summary.docx Consultants in Architectural Acoustics & Noise Control 16-114 Newport Bay Marina Acoustical Test Report—September 2015 Page 2 PROJECT DESCRIPTION The Newport Bay Marina mixed-use project is located at 2300 Newport Beach Blvd. in Newport Beach, California and shown on the vicinity map in Figure A below. The east property line of the project is lo- cated directly on the waterfront of Lida Isle Channel between Woody's Wharf to the north, a boat ramp and restaurants to the south, and Newport Blvd. to the west. The mixed-use project is three stories in height and includes commercial, retail,residential occupancies,and parking spaces below. A larger scale overall site plan of the Newport Bay Marina mixed-use project is superimposed on an aerial photograph and shown for information in Figure B. Immediately adjacent to the northeast corner of the project is the Woody's Wharf restaurant/bar build- ing and boat docks. The Woody's Wharf building extends the full width of the property and includes an outdoor patio at the northeast corner as noted on Figure C. Parking for Woody's Wharf patrons appears to be offsite or via a valet service from the parking lot on Newport Blvd. \j�NEWPORTBAY MART PROJECT 517E Figure A VICINITY MAP m�m m�m m�m 16-115 Newport Bay Marina Acoustical Test Report—September 2015 Page 3 r 4 2J �> �I�E y �✓\ 1% S'rl 5DC Y� l WOODY' WH PATIO w li av •a° ' ` l WOODYS s . �• * /� WHARF fix,♦ . N��pOf 0L Figure B VICINITY MAP/SITE PLAN GENERAL We understand that Woody's Wharf desires to extend the outdoor hours of patio operation to 2:00 a.m. on Thursday, Friday and Saturday nights and an additional 12 other days per year via an amendment to a current Conditional Use Permit. Per the request of Newport Beach Marina LLC, RS Acoustics Inc. conducted noise level measurements in the nighttime and early morning hours on Thursday 17-Sept, Friday 18-Sept and Saturday 19-Sept. on the Newport Bay Marina property at the property line closest to the Woody's Wharf building and at the residential patio nearest the property line near the Woody's Wharf building. Acoustical measurements were conducted at several locations and elevations further described within this report and shown in Figure C. Access to the site was made via the construction gate located on Newport Blvd. Ill��l�iil� 16-116 Newport Bay Marina Acoustical Test Report—September 2015 Page 4 Detailed acoustical test results of this measurement program are presented herein. COMMUNITY NOISE ASSESSMENT METRICS in general, community noise measurements or assessments refer to descriptions of the exterior noise environment in the vicinity of inhabited areas. Descriptions of noise usually include the time and spatial variations in the.outdoor noise environment throughout a specific area so that descriptions are relevant to the effect on people within the specified area. A-weighted sound level "dB(A)" is one of the most widely used methods of stating community noise de- sign goals and regulations in terms of a single number rating system. A-weighted sound levels are ob- tained with a sound level meter incorporating an electronic weighting network that de-emphasizes the low frequency portions of the noise spectrum;to automatically compensate for the lower sensitivity of the human ear to low frequency sounds. High frequency components of sound, 1000Hz and above are relatively unchanged in A-weighting networks as the human ear is fairly equally sensitive to all sounds occurring in this high frequency range.. The single A-weighted sound level is the sum of all A-weighted sound energy within the measured frequency range. The City of Newport Beach utilizes A-weighted sound levels in their noise ordinance to quantify allowa- ble noise levels which are averaged over a specific time period. This time component is specified to al- low for varying, noise conditions such as the fluctuating noise levels associated with vehicular traffic stopping or accelerating from an intersection. The resultant level would be the average of all sound lev- els measured within the stated time period. The noise ordinance.of The City of Newport Beach requires that noise measurementsbe conducted and averaged over a 15 minute period,with a sound level meter set for a slow response averaging time. The result is termed a "15 minute L,Q", (Equivalent Noise Level) and is measured and presented in A- weighted decibels levels. By definition, a 15 minute Leq is the A-weighted sound level corresponding to a steady-state sound level containing the same total sound energy as a time-varying signal over the 15 minute period. For short duration or impact sounds, the City of Newport Beach utilizes the L,,, metric or (Maximum Sound Level). This metric is also expressed in A-weighted decibels, and L,,, levels quantify the highest sound level measured or recorded during a designated time interval. 16-117 Newport Bay Marina Acoustical Test Report—September 2015 Page 5 Measurement Posltlon 2 RE5IDENTIAL (Resldentlal Occ.) OCCUPANCY Measurement Position I Resldentlal pgtio (Commercial Occ.) at 3rd floor`. WOODY's r WHARF PATIO '' t a ° t \ t i• w WOODY'S • WHARF 7 \—Resid. patio at 2nd floor. COMMERCI L w Acodg's Wharf OCCUPANCY ' entrance d queue area Measurement ��. Position 3 Figure C ACOUSTICAL MEASUREMENT LOCATIONS 16-118 Newport Bay Marina Acoustical Test Report—September 2015 Page 6 CITY OF NEWPORT BEACH NOISE STANDARDS The noise level standards and requirements relative to this project from the City of Newport Beach Mu- nicipal Code Chapter 10.26(Community Noise Control)are included below. 10.26.020 Designated Noise Zones The properties hereinafter described assigned to the following noise zones: Noise Zone I All single-,two-,or multiple-family residential properties. Noise Zone II All commercial properties Noise Zone III The residential portion of mixed-use properties Noise Zone IV All manufacturing or industrial properties 10.26.025 Exterior Noise Standards A. The following noise standards, unless otherwise specifically indicated,shall apply to all proper- ty within a designated noise zone: Allowable Exterior Noise Level Noise Type of Land Use (Equivalent Noise Level,Leq) Zone 7:00 am-10:00 pm 10:00 pm-7:00 am I Single-,two-,or multiple-family residential. 55 dB(A) 50dB(A) II Commercial 65 dB(A) 60 dB(A) III Residential portions of mixed use properties 60 dB(A) 50 dB(A) IV Industrial or Manufacturing 70dB(A) 70 dB(A) If the ambient noise level exceeds the resulting standard,the ambient shall be the standard. B. It is unlawful for any person at any location within the incorporated area of the City to create any noise, or to allow the creation of any noise on property owned, leased, occupied or oth- erwise controlled by such person, which causes the noise level when measured on any other property,to exceed either of the following: 1. The noise standard for the applicable zone for any fifteen-minute period; 2. A maximum instantaneous noise level equal to the value of the noise standard plus twenty(20)dB(A)for any period of time(measured using A-weighted slow response). C. In the event the ambient noise level exceeds the noise standard,the maximum allowable noise level under said category shall be increased to reflect the maximum ambient noise level. D. The Noise Zone III standard shall apply to that portion of residential property falling within one hundred (100) feet of a commercial property, if the intruding noise originates from that com- mercial property. m�m m�m mi m 16-119 Newport Bay Marina Acoustical Test Report—September 2015 Page 7 E. If the measurement location is on boundary between two different noise zones, the lower noise level standard applicable to the noise zone shall apply. (Ord.95-53 § 1, 1995; Ord. 95-38 § 11 (part), 1995) 10.26.055 Noise Level Measurement A. The location selected for measuring exterior noise levels in a residential area shall be at any part of a private yard, patio, deck or balcony normally used for human activity and identified by the owner of the affected property as suspected of exceeding the noise level standard. This location may be the closest point In the private yard or patio, or on the deck or balcony, to the noise source, but should not be located in nonhuman activity areas such as trash container storage areas, planter beds, above or contacting a property line fence, or other areas not normally used as part of the yard, patio, deck or balcony. The location selected for measuring exterior noise levels in a nonresidential area shall be at the closest point to the noise source. The measure- ment microphone height shall be five feet above finish elevation or, in the case of a deck or bal- cony,the measurement microphone height shall be five feet above the finished floor level. TEST EQUIPMENT Noise levels measurements were conducted with the equipment noted below. Acoustic calibration of measuring equipment was conducted immediately prior to and following the test procedures. • Larson Davis Type 824 Type I integrating one-third octave band sound level meter • Larson Davis Model PRM902 microphone preamplifier • Larson Davis Type CAL200 precision Class I sound level calibrator calibrated to a reference traceable to the National Institute of Standards and Technology. • Larson Davis Type 2560 '/:" microphone which meets the specifications of IEC 60651 and ANSI 51.4-1983 Type 1. Measurement equipment satisfies the American National Standards Institute (ANSI) Standard 1.4 for Type 1 precision sound level measurements as well as all requirements for testing equipment for the City of Newport Beach. ACOUSTICAL ENVIRONMENT Noise levels were measured over the course of three(3)nights/early morning hours on the Newport Bay Marina property at the following locations: 1. At the top of the existing CMU wall located at the property line between the Newport Bay Mari- na and the Woody's Wharf building; 2. At the second and third levels of the east elevation of the proposed mixed-use building at the proposed residential patios closest to Woody's Wharf building; 3. Ten feet from the property line near the front entrance of Woody's Wharf. 16-120 Newport Bay Marina Acoustical Test Report—September 2015 Page 8 Noise levels were measured on the property line at the top of the CMU wall on Thursday night Septem- ber 17 and Friday morning September 18. During our measurements, a door in the southeast corner of the Woody's Wharf building was open and we noted several occasions when Woody's patrons would walk outside to chat on the concrete sidewalk. At the measurement position,there was also a direct line of sight to a gable mounted exhaust fan louver located in the gable of the south wall of the Woody's Wharf building. Using an extension microphone stand, acoustical measurements were also conducted at the elevated locations of the proposed residential patios located on the second and third levels of the proposed building on Friday night September 18 through Saturday morning September 19, and again on Saturday night September 19 through Sunday morning September 20. Measurements were also conducted 10' from the property line at +8' above grade directly across from the front entrance of Woody's Wharf to determine the noise levels due to patrons waiting to be let into Woody's Wharf. The general acoustical environment and observed events during the Friday and Saturday night meas- urements are described below: • Conversations and minor music could be heard from Woody's Wharf up until approximately 10:30 p.m. Crowd noise from Woody's patrons was predominant noise source at this time. • Noise levels from music and patron crowd noise increased after approximately 10:30 p.m. • Several times small electric Duffy boats arrived and departed the docks at Woody's Wharf. These are relatively quiet events. • Large yachts and a sailboat arrived and departed from the docks during the measurement pro- gram. Shouting, laughing, and music was occasionally audible from these boats. • There is a chain across the dock entrance near the Woody's Wharf building. We observed this area to be an informal gathering spot for small groups of Woody's Wharf patrons especially on Friday and Saturday nights. • The door at the east corner of the south elevation of the Woody's Wharf building was open all three nights of our on-site testing. • A DJ working in the Woody's Wharf building was often audible but typically not intelligible at the northeast corner of the Marina Bay property. • Music and crowd noise from Woody's Wharf continued until approximately 1:45 a.m. When the music was shut off, or turned considerably down,crowd noise ceased concurrently. Crowd noise at the front parking lot from patrons leaving increased for 15 to 20 minutes following closing time. • Minimal commercial aircraft overflights or other offsite events were observed during our measurements. 16-121 Newport Bay Marina Acoustical Test Report—September 2015 Page 9 ACOUSTICAL MEASUREMENT RESULTS Measurements Conducted Thursday night/Friday morning 17/18 September 2015 (Position 1-Figure C) Noise levels measured on 17/18 September were conducted at the top of the existing CMU wall located at the property line between the Newport Bay Marina and the Woody's Wharf building as shown in Fig- ure C. The measurement position had a direct line of sight to the open door in the southeast corner of the Woody's Wharf building. We also noted two (2) small electric "Duffy" boats pulled into the Woody's docks. Several patrons dis- embarked the boats and entered Woody's, returning later in the evening and left via the Duffy boats. These were relatively quiet events and did not contribute to the overall sound level environment. There is an exhaust louver located in the gable of the south elevation of the Woody's building approxi- mately 10' above grade which started operating at 10:30 p.m. The noise levels at the measured at the property line increased by one (1) dB(A) suggesting that noise level from the fan operation is approxi- mately 60 dB(A)to 65 dB(A)at the property line. Noise levels measured are presented in Table I below. Note that sound levels are rounded to the near- est whole integer and presented in A-weighted 15 minute Leq's and Lmax levels in accordance with the City of Newport Beach noise ordinance. TABLE I NIGHTTIME NOISE LEVELS MEASURED AT PROPERTY LINE 17-18 SEPTEMBER 2015(THURs/FRI) Start Time Finish 15 min. Lmax- Acoustic Environment Description Time L.-dB(A) dB(A) Measurements conducted at property line.—Top of new CMU wall. 10:15 10:30 69 76 o Crowd noise and music from Woody s Wharf. 10:30 10:45 71 77 o Exhaust fan starts at Woody's Wharf. o Crowd noise and music from Woody's Wharf. 10:45 11:00 72 78 o Crowd noise and music from Woody's Wharf. o Crowd noise and music from Woody's Wharf. 11:00 11:15 73 85 o Small group of patrons standing outside near open door to Woody's Wharf building. 11:15 11:30 72 76 o Crowd noise and music from Woody's Wharf. 11:30 11:45 72 78 o Crowd noise and music from Woody's Wharf. 11:45 12:00 72 81 o Crowd noise and music from Woody's Wharf. o Crowd noise and music from Woody's Wharf. 12:00 12:15 73 87 o Small group of patrons standing outside near open door to Woody's Wharf building. 12:15 12:30 73 84 o Crowd noise and music from Woody's Wharf. 16-122 Newport Bay Marina Acoustical Test Report—September 2015 Page 10 Start Time Finish 15 min. Lmax- Acoustic Environment Description Time L.,-dB(A) dB(A) o Small group of patrons standing outside near open door to Woody's Wharf building. 12:30 12:45 71 81 o Crowd noise and music from Woody's Wharf. 12:45 1:00 71 75 o Crowd noise and music from Woody's Wharf. 1:00 1:15 71 78 o Crowd noise and music from Woody's Wharf. 1:15 1:30 69 74 o Crowd noise and music from Woody's Wharf. 1:30 1:45 67 74 o Crowd noise and music from Woody's Wharf. 1:45 2:00 62 68 o Music from Woody's Wharf stopped. o Crowd noise and music from Woody's Wharf. 2:00 2:15 56 68 o Occasional talking from within Woody's Wharf. Most probably staff or cleaning crew. o Woody's Wharf closed. Noise levels at site due to 2:15 2:30 55 58 water splash from on-site pumps and minor traffic on Newport Blvd. o Woody's Wharf closed. Noise levels at site due to 2:30 2:45 55 70 water splash from on-site pumps and minor traffic on Newport Blvd. Per section 10.26.025 of the City of Newport Beach Noise Standards, the noise standard for commercial properties during nighttime hours is Leq-60 dB(A). The maximum level (Lmax) is the noise standard plus 20 dB(A). Measurements Conducted Friday night/Saturday morning 18/19 September 2015 (Position 2-Figure C) Noise levels shown in Table II below were measured on 18/19 September and conducted at the residen- tial patio locations of the proposed new building. During our measurements,the primary noise source was music and crowd noise from Woody's Whaff, and to a lesser degree conversations and shouting from the dock and boats docked at the Woody's Wharf docks. TABLE II NIGHTTIME NOISE LEVELS MEASURED AT RESIDENTIAL PROPERTY 18—19 SEPTEMBER 2015(FRI/SAT) StartTime Finish 15 min. Lmax- Acoustic Environment Description Time i.-dB(A) dB(A) Measurements conducted at second floor level.-Residential patio. 9:30 9:45 59 69 o Music from Woody's Wharf area slightly audible- crowd noise predominant noise source. 9:45 10:00 58 67 o Music from Woody's Wharf area slightly audible- crowd noise predominant noise source. 10:00 10:15 59 67 o Music from Woody's Wharf area slightly audible- crowd noise predominant noise source. 16-123 Newport Bay Marina Acoustical Test Report—September 2015 Page 11 Finish 15 min. Lmax- StartTime Time L.4-dB(A) dB(A) Acoustic Environment Description o Exhaust fan starts 10:15 10:30 58 68 o Music from Woody's Wharf area slightly audible- crowd noise predominant noise source. 10:30 10:45 60 67 o Crowd noise and music from Woody's Wharf. 10:45 11:00 61 68 o Crowd noise and music from Woody's Wharf. 11:00 11:15 62 68 o Crowd noise and music from Woody's Wharf. 11:15 11:30 63 70 o Crowd noise and music from Woody's Wharf. 11:30 11:45 64 71 o Crowd noise and music from Woody's Wharf. o Crowd noise and music from Woody's Wharf. 11:45 12:00 65 77 o Small group of patrons standing outside near open door to Woody's Wharf building. 12:00 12:15 Battery change in SLM. No measurements this period. Measurements conducted at third floor level.-Residential patio. 12:30 12:45 67 76 o Crowd noise and music from Woody's Wharf. o Crowd noise and music from Woody's Wharf. 12:45 1:00 67 82 o Small group of patrons standing outside near open door to Woody's Wharf building. o Crowd noise and music from Woody's Wharf. 1:00 1:15 67 73 o Small group of patrons standing outside near open door to Woody s Wharf building. 1:15 1:30 66 72 o Crowd noise and music from Woody's Wharf. 1:30 1:45 64 77 o Crowd noise and music from Woody's Wharf. 1:45 2:00 60 80 o Exhaust fan turned off. o Music stopped at Woody's Wharf. o Conversations within Woody's Wharf. 2:00 2:15 59 67 o Shouting from front of Woody's Wharf from pa- trons leaving. o Increased traffic noise. o Woody's Wharf closed. Noise levels at site due to 2:15 2:30 57 65 water splash from on-site pumps and increase in traffic noise on Newport Blvd. o Woody's Wharf closed. Noise levels at site due to 2:30 2:45 55 60 water splash from on-site pumps and minor traffic on Newport Blvd. o Woody's Wharf closed. Noise levels at site due to 2:45 3:00 54 64 water splash from on-site pumps and minor traffic on Newport Blvd. Per section 10.26.025 of the City of Newport Beach Noise Standards, the noise standard for res- idential properties within mixed-use properties during nighttime hours is Leq-50 dB(A). The maximum level(Lmax)is the noise standard plus 20 dB(A). Noise levels shown in Table II-A below were measured on 18/19 September at 8' above grade and 10' from the property line directly across from the front entrance of Woody's Wharf to determine the noise 16-124 Newport Bay Marina Acoustical Test Report—September 2015 Page 12 levels due to patrons waiting to be let into Woody's Wharf. The primary noise source was from conver- sations, laughing and shouting from patrons waiting in line, and to a lesser degree traffic noise and mu- sic from inside the Woody's Wharf building. (Position 3-Figure C) TABLE II-A NIGHTTIME NOISE LEVELS MEASURED NEAR WOODY'S WHARF ENTRY 18—19 SEPTEMBER 2015(FRI/SAT) Start Time Finish 15 min. Lmax- Acoustic Environment Description Time -dB(A) I dB(A) Measurements conducted 30'from property line near Woody's Wharf entrance. o Noise levels from conversations and shouting from 12:15 12:30 68 77 people in line near Woody's Wharf entrance waiting to go Inside. Measurements Conducted Saturday night/Sunday morning 19/20 September 2015 Noise levels shown in Table III below were measured on 19/20 September and conducted at the third floor residential patio location of the proposed new building. During our measurements, the primary noise source was music and crowd noise from Woody's Wharf, and to a lesser degree conversations and shouting from the dock and boats docked at the Woody's Wharf docks. TABLE III NIGHTTIME NOISE LEVELS MEASURED AT RESIDENTIAL PROPERTY 19—20 SEPTEMBER 2015(SAT/SUN) Start Time Finish 15 min. Lmax- Acoustic Environment Description Time 4 -dB(A) dB(A) Measurements conducted at third floor level.-Residential patio. o Music from Woody's Wharf area slightly audible- crowd noise predominant noise source. 9:00 9:15 60 64 o Sailboat on WW dock w/5 on board.Conversation noise from boat-no music. o Two yachts at WW dock. o One yacht leaves. 9:15 9:30 60 69 o Music from Woody's Wharf slightly audible-crowd noise predominant source. o Commercial aircraft overflight. 9:30 9:45 61 69 o Music fromWoody'sWharfslightlyaudible-crowd noise only. o Helicopter overflight. 9:45 10:00 62 75 o Music fromWoody'sWharfslightlyaudible-crowd noise only. 10:00 10:15 64 72 o Helicopter overflight. o Music and talking on sailboat at dock. 16-125 Newport Bay Marina Acoustical Test Report—September 2015 Page 13 StartTime Finish 15 min. Lmax- Time L,4-dB(A) dB(A) Acoustic Environment Description o Sheriff boat cruises by site at 10:04. o Crowd noise from Woody's Wharf. Music slightly audible. o Exhaust fan starts at Woody's Wharf. 10:15 10:30 Battery change in sound level meter. No measurements this period. o Yachtw/music and talking on-board motors past 10:30 10:45 63 69 site. o Music from Woody's Wharf slightly audible. o Music levels from Woody's Wharf subjectively in- 10:45 11:00 64 70 creased. o People on boats now inside Woody's Wharf. 11:00 11:15 65 72 o Crowd noise and music from Woody's Wharf. o Large yacht backs into dock at Woody's Wharf-±6 11:15 11:30 67 71 males disembarked and went into Woody's Wharf. o Crowd noise and music from Woody's Wharf. 11:30 11:45 67 78 o Crowd noise and music from Woody's Wharf. 11:45 12:00 67 74 o Crowd noise and music from Woody's Wharf. 12:00 12:15 67 76 o Crowd noise and music from Woody's Wharf. 12:15 12:30 68 76 o Crowd noise and music from Woody's Wharf. 12:30 12:45 68 72 o Crowd noise and music from Woody's Wharf. 12:45 1:00 67 76 o Crowd noise and music from Woody's Wharf. o Approximately 20 patrons from Woody's boarded 1:00 1:15 68 77 yacht at dock. o Crowd noise and music from Woody's Wharf. 1:15 1:30 68 75 o Talking and laughing on yacht. o Crowd noise and music from Woody's Wharf. o Yacht with±20 people leave dock and motor to the 1:30 1:45 68 76 south with music playing onboard. o Crowd noise and music from Woody's Wharf. 1:45 2:00 62 73 o Music stopped at Woody's Wharf. o Crowd noise only from Woody's Wharf. o Minor conversations audible from Woody's Wharf. 2:00 2:15 55 63 Most probably cleaning crew and staff. o Shouting from front parking lot of Woody's Wharf. o Audible increase in traffic noise levels. o Woody's Wharf closed. Noise levels at site due to 2:15 2:30 53 58 water splash from on-site pumps and minor traffic on Newport Blvd. Per section 10.26.025 of the City of Newport Beach Noise Standards, the noise standard for res- idential properties within mixed-use properties during nighttime hours is Leq-50 dB(A). The maximum level(Lmax)is the noise standard plus 20 dB(A). m�m mf1 m m• m 16-126 Newport Bay Marina Acoustical Test Report—September 2015 Page 14 SUMMARY/DISCUSSION The site plans for the Newport Bay Marina project show that commercially occupied spaces are pro- posed to be constructed immediately adjacent to the property line of Woody's Wharf. The City of New- port Beach Noise Standard for commercial properties is Leq-60 during the nighttime hours of 10:00 p.m. and 7:00 a.m. Noise levels measured at the Newport Bay Marina property line adjacent to Woody's Wharf are shown in Table I within this report and graphically in Chart A below. As shown in the chart, the 15 minute Leq noise level measurements at the property line between the hours of 10:15 p.m. and 2:00 a.m. show that the noise levels generated by activity associated with Woody's Wharf exceed the City of Newport Beach noise standard of Leq-60 dB(A) by typically more than 10 dB(A). After 2:00 a.m., noise levels were sufficiently reduced to satisfy the Leq-60 dB(A) noise stand- ard for commercial properties. Additionally, the maximum measured noise levels exceeded the City of Newport Beach Noise Standard of Lmax-80 dB(A) during five of the eighteen 15 minute measurements ranging between Lmax-81 and Lmax-87. Noise Levels Measured at Property Line 75 70 65 m` a d 60 d J H 55 O 2 v � 50 d Y C E 45 - 40 10:15 10:30 10:45 11:00 1115 11:30 11:45 12:00 12:15 12:30 12:45 1:00 1:15 1:30 1:45 2:00 2:15 2:30 pm/ pm/ pm/ pm/ pm/ pm/ pm/ am/ am/ am/ am/ am/ am/ am/ am/ am am/ am/ 10:3010:4511:0011:1511:3011:4512:0012:1512:3012:45 1:00 1:15 1:30 1:45 2:00 /2:15 2:30 2:45 pm pm pm pm pm pm am am am am am am am am am am am am Measured Noise Levels-Start/Stop Times —Measured 15 minute Leq noise levels —Newport Beach commercial noise standard Chart A NOISE LEVELS MEASURED AT PROPERTY LINE IC n ml m 16-127 Newport Bay Marina Acoustical Test Report—September 2015 Page 15 At shown in the unit plans,there is a residential deck/patio located on the third floor at the east eleva- tion of the building which is approximately 16'from the property line. At the second floor,the residen- tial patio is approximately 40' from the property line. Windows serving the second floor master bed- room are approximately 20'from the property line. Using an extension mic stand, noise levels were measured at the locations of the proposed patios/decks of the second and third floor elevations, 25' from the property line. Noise levels measured at the resi- dential exterior deck areas nearest to Woody's Wharf building is shown in Chart B below. The City of Newport Beach Noise Standard for residential properties within mixed-use properties is Leq- 60 during the daytime hours of 7:00 a.m. to 10:00 p.m. and Leq-50 during the nighttime hours of 10:00 p.m.and 7:00 a.m. The 15 minute Leq noise levels measured at the residential decks were found to exceed the City of Newport Beach Noise standard for residential properties by more than 15 dB(A) for several hours after 10:00 p.m.due to noise levels generated by Woody's Wharf. On Friday night 18 September, the maximum measured noise levels exceeded the City of Newport Beach Noise Standard of Lmax-70 dB(A) during eight of the twenty 15-minute measurements ranging between Lmax-71 and Lmax-82. On Saturday night 19 September, the maximum measured noise levels exceeded the City of Newport Beach Noise Standard of Lmax-70 dB(A) during fifteen of the twenty 15-minute measurements ranging between Lmax-71 and Lmax-78. A 15 minute Leq noise level measurement was also conducted at the west elevation of the proposed mixed use building at 8' above grade and 10' from the Newport Bay Marina property line. This area is exposed to the noise levels generated by Woody's Wharf patrons waiting in line to gain entrance to Woody's Wharf. At shown in the unit plans,there is a residential deck/patio located on the second floor at the west ele- vation of the building which is approximately 16'from the property line. As noted above, the City of Newport Beach Noise Standard for residential properties within mixed-use properties is Leq-50 during the nighttime hours of 10:00 p.m. and 7:00 a.m. Noise levels were measured at this location between 12:15 a.m. to 12:30 a.m. and were found to be Leq-68 which exceeds the City of Newport Beach noise standard of Leq-50 during nighttime hours by 18 dB(A). 16-128 Newport Bay Marina Acoustical Test Report–September 2015 Page 16 Levels Measured at Residential Patios 70 65 Q m` v 60 > v J N 55 .o Z v v 50 c E 45 40 E E E E E E E E E E E E EE E E E E E E E E E E a a n a a a a a a a a m m m m m m m m m m m m m ofO vl pp uu�� O of O of O N O of O of O O �!/ O V O ul O e71 M '7 O ci cn ct 9 N M a O ei cn V O cn V R N M a O E E E \ \ \ \ \ \ \ \ \ \ \ \ E E E E E E E E E n a a E E E E E E E E E E EE m m m m m m m m M a a a a a s a s m m m o H m ml aO tiO mO O � "� � a� 8 ^ o Ol O1 Ol a o -i m �� cn� Na. :i Li Li.+ �4m v~ N4 N.-+ Nm. a N Measured Noise Levels-Start/Stop Times —r-Levels measured at 2nd level-residential patio 18/19 Sept. --*–Levels measured at 3rd level-residential patio 18/19 Sept. –*–Levels measured at 3rd level-residential patio 19/20 Sept. —Newport Beach commercial noise standard Chart B NOISE LEVELS MEASURED AT RESIDENTIAL PATIOS m�m 16-129 Newport Bay Marina Acoustical Test Report—September 2015 Page 17 Based on the data gathered at the site during our three day measurement program beginning Thursday night September 17" and ending Sunday morning September 20th,the average Leq and maximum Lmax noise levels generated during the nighttime hours by Woody's Wharf restaurant/bar typically exceeded the City of Newport Beach Noise Standards for both commercial properties and residential occupancies within mixed-use properties when measured at the Newport Bay Marina mixed use project. This concludes our report. Please feel free to call with any questions or comments. Sincerely yours, RS Acoustics Inc. Robert Schmidt, Principal C:\Users\Public\Documents\Projects\NewportBay Marina\Report\Newport Bay Marina v.2.doa �I�Iw 16-130 I ° oo © W - e �f m `II■��� II . a�ll■�I � � mu 10 IIG ivollo�go�� n mter— I+ ONI ■fill Om I From: Harp, Aaron Sent: Monday, September 21, 2015 8:41 AM Cc: Torres, Michael; Brown, Leilani; Kiff, Dave; Brandt, Kim Subject: FW: Woody's Attachments: 20150921063134662.pdf Importance: High Good Morning Honorable Mayor and Council Members, Attached is an additional submittal by Gary McKitterick related to Woody's Wharf. -----Original Message----- From: McKitterick, Gary Sent: Monday, September 21, 2015 7:16 AM To: Aaron C. Harp Esq. (ahMp@a,newportbeachca.gov) <aharpac newportbeachca.gov>; 'Dixon, Diane' <ddixon cr,ncwportbeachca.eov>; anthony.netros rr,lsa-assoc.com Ce: McKitterick, Gary <ymtekittedck(@allcnmatkins.com>; Mills Consulting <stevePniillsconsulting.net>; Saulus, Mary <msaulus(@allenmatkins.com> Subject: Woody's Importance: High The staff report has many material flaws that are factual. Example is the attached page as well as the noise study that is attached from almost 3 years ago. Look at attachment 5 and 8. The City NEVER studied the most impacted property which happens to be owned by my client. The errors are material. My client has residential balconies within close proximity to the PL with Woody's. Look at the plans for Building H , two units with master bedrooms facing the Bay close to the PL. I provided the drawings to you back in April. Look at the noise study that is almost 3 years old. Look at the test areas. They never reviewed the potential impacts to Newport Bay marina. We have an expert sound study which will show significant noise violations for Noise Zone III. The City Code is very helpful to define the standard and the obligation for compliance to conform to the Noise ordinance. Gary S. McKitterick Esq. Partner Allen Matkins Leck Gamble Mallory & Natsis LLP 1900 Main Street, 5th Floor, Irvine, CA 92614-7321 (949) 553-1313 (main) (949) 851-5432 (direct) (949) 751-8270 (mobile) (949) 553-8354 (fax) Confidentiality Notice: The information contained in this electronic e-mail and any accompanying attachment(s) is intended only for the use of the intended recipient and may be confidential and/or privileged. If t 16-132 any reader of this communication is not the intended recipient, unauthorized use, disclosure or copying is strictly prohibited, and may be unlawful. If you have received this communication in error, please immediately notify the sender by return e-mail, and delete the original message and all copies from your system. Thank you. z 16-133 5'8/2015 Coversheet Operd,or License from the Police Department. The Operator License is a tool that the Police Department can utilize to enforce the conditions of approval of the use permit. Pursuant to Section 20.48.090 of the Zoning Code, the City Council must consider the following potential impacts upon adjacent or nearby uses when reviewing an application to allow late-hour operations and j outdoor dining: l 1. Noise from music, dancing, and voices associated with allowed outdoor uses and activities; 2. High levels of lighting and illumination; 3. Increased pedestrian and vehicular traffic activity during late and early morning hours; 4. Increased trash and recycling collection activities; 5. Occupancy loads of the use;and 6. Any other factors that may affect adjacent or nearby uses. Extending the hours of the outdoor dining area from 11:00 p.m. to 2:00 a.m. to include Thursday nights (and 12 other nights per year), could slightly increase traffic after 11:00 p.m. (current required closing hour). However, the location of the valet parking pick-up and drop-off area is shielded from the residences by the restaurant building, thereby mitigating noise impacts from this activity to residential uses across and along the Rhine Channel. The proposed use will not necessitate high levels of lighting or illumination and any outdoor lighting must conform to Zoning Code Section 20.30.070 (Outdoor Lighting). A temporary increase in traffic during late and early morning hours on weekends is expected along Newport Boulevard; however, this portion of roadway is not a major residential road, so disturbances to residents related to traffic are not expected to occur._._. ._. . . . .. .... Directly adjacent to the site is a new mixed use development, Newpa Marina, which is presently under construction and includes residential units located approximately ee o e sou Restricting live entertainment to the interior, ceasing sound amplification at 10:00#p . on t e out oor dining area and requiring that doors and windows be closed during live entertainment will help reduce noise impacts on the surrounding neighborhood. I Parking i i The current parking requirement for Woody's Wharf is 40 parking spaces which are currently provided by 26 . on-site spaces, the payment for 10 in lieu parking spaces,and the credit of 4 spaces for the boat docks. Six of the on-site spaces are tandem spaces approved with valet parking plan. The current approval allows the .operator to utilize the valet parking service on an as-needed basis (to satisfy peak demand, special events, and holidays) and when dancing and/or live entertainment occurs.'The Public Works Department has no objection to the valet parking plan as previously approved and depicted on the plans submitted. No changes to the parking requirement or management as approved by the Planning Commission are requested or recommended. Modified Conditions of Approval Several conditions of approval require modification to reflect the requested change in hours of operation, use of the main outdoor patio dining area, and the introduction of additional days for dancing, as well as clarifying language of the intent of several conditions. Please see the underlined/strike-out version of the proposed condition changes in Attachment CC 2. Other proposed modifications are as follows: • Condition No. 5:The proposed modification states the Operator License will be subject to the same conditions of approval as the use permit. Staff supports this modification given the extensive number of conditions of approval that address late-hour operations. • Conditions No. 6 and 50: The proposed modifications state the closing hour of the kitchen is at the discretion of the applicantloperator and "happy hour" shall be allowed in conjunction with food service. Staff supports these modifications given that Condition No. 52 requires the applicant to comply with State requirements for a Type 47 Alcoholic Beverage Control (ABC) license and that the service of food is the principal use of the facility. • Condition No. 18. The proposed modification revises the language to state that the CUP runs with the http://novusagandapublic.newporibeachca.gov/CoverSheat.aspx?ltemll)=7628&Meating[D=699 - 518 16-134 From: McKitterick, Gary <gmckitterick@allenmatkins.com> Sent: Saturday, September 19, 2015 8:09 AM To: Diane Dixon; anthony.petros@lsa-assoc.com Cc: McKitterick, Gary; Harp, Aaron Subject: Woody's Wharf Use Permit Amendment request No. UP2011-010 Importance: High Dear Diane and Tony, I will address the CC on Tuesday on behalf of my client who is adversely impacted by the late night noise and behavior of the immediately adjacent property.The expansion of operating intensity for a business who already is non-compliant j with existing rules is not good governance by the City. There are standards that should be objectively applied to maintain a livable balance for the citizens of Newport Beach. `t Please note the staff report) does not accurately describe the mixed use project owned by my client. Residential units fare in close proximity to Woody's. The report does not make a proper analysis of adverse impacts to our property. Ask f the staff if they have conducted a noise and impact study? Remembet-in 2013 our property was a plan botin 2015 we 1 are under construction and the staff must evaluate the most impacted property.The staff has failed to evaluate the impacts to our property. I also addressed the CC in October 2013 and incorporate my prior comments into the record for this hearing. I would ask the City to please make that transcript available to incorporate the objections. There is no compelling public benefit in expanding the operating hours of an establishment who has a track record of violations of the existing permits and numerous Police reports. To expand any operating hours will be a voluntary action by the City that will cause direct adverse impacts to my client's property. As a process issue, I am aware of the lawsuit and settlement and its probable influence on City decision makers. We certainly expect all CC members who received political donations from the owners of Woody's to make proper public disclosure prior to any hearing and follow conflict of interest rules. I do not have the emails of the other CC members but I have copied Mr. Harp who can forward Gary S. McKitterick Esq. Partner Allen Matkins Lack Gamble Mallory& Natsis LLP 1900 Main Street, 5th Floor, Irvine, CA 92614-7321 (949) 553-1313 (main) (949) 851-5432 (direct) (949) 751-8270 (mobile) (949) 553-8354 (fax) Allen Matkins t 16-135 Confidentiality Notice: The information contained in this electronic e-mail and any accompanying attachment(s) is intended only for the use of the intended recipient and may be confidential and/or privileged. If any reader of this communication is not the intended recipient, unauthorized use, disclosure or copying is strictly prohibited, and may be unlawful. If you have received this communication in error, please immediately notify the sender by return e-mail, and delete the original message and all copies from your system. Thank you. 2 16-136 From: McKitterick, Gary <gmckitterick@allenmatkins.com> Sent: Sunday, September 20, 2015 10:37 AM To: Harp, Aaron Cc: Dixon, Diane; McKitterick, Gary Subject: FW:Woody's Wharf Use Permit Amendment request No. UP2011-010 Importance: High We should talk on Monday morning—our findings impact the proposed settlement. Our expert is the same firm I used for Hoag for the Villa Balboa review. We will have documented violations on 9/17,18 and 19 . Newport Beach --Code 10.12.070,075,080 and 090 B 10.26.025 Exterior Noise Standards.' ...................................................................................................................................._..................................... r:......................................-.._._................................._.......................... A. The following noise standards, unless otherwise specifically indicated, shall apply to all property with a designated noise zone: ALLOWABLE EXTERIOR NOISE' LEVEL (Equivalent Noise Level, NOISE Leq) ZONE TYPE OF LAND USE 7 a.m.to 10 p.m. 10 p.m.•to 7 a.m. I Single-, two-or multiple-family residential 55 DBA 50 DBA II Commercial 65 DBA 60 DBA III Residential portions of mixed-use properties 60 DBA 50 DBA 10.26.070 Prima Facie Violation.M SHARE V Any noise exceeding the noise level standard as specified in Section 10.26.025 and 10.26.030 of this chapter, shall be deemed to be prima facie evidence of a violation of the provisions of this chapter. (Ord. 95-38 § 11 (part), 1995) 10.26.075 Violations. SHARE V .................................................................................::::.. ......... r........................................................................................................................................................... ........ Any persons violating any of the provisions of this chapter shall be deemed guilty of an infraction. (Ord. 95-38§ 11 (part), 1995) 10.26.080 Violations—Additional Remedies—Injunctions. SHARE t � 3 :.,' 1 16-137 A. As an additional remedy, the operation or maintenance of any device, instrument, vehicle or machinery in violation of any provisions of this chapter which operation or maintenance causes or creates sound levels exceeding the allowable standards as specified in this chapter shall be deemed and is declared to be a public nuisance and may be subject to abatement summarily by a restraining order or injunction issued by a court of competent jurisdiction. B. Any violation of this chapter is declared to be a public nuisance and may be abated in accordance with law. The expense of this chapter is declared to be public nuisance and may be by resolution of the City Council declared to be a lien against the property on which such nuisance is maintained, and such lien shall be made a personal obligation of the property owner. (Ord. 95-38 § 11 (part), 1995) 10.26.090 Noise Abatement Programs.` SHAPE M ...........................................................................................................................................................................................:.:.::........................................................................................ A. In circumstances which adopted community-wide noise standards and policies prove impractical in controlling noise generated from a specific source, the City Council may establish a noise abatement program which recognizes the characteristics of the noise source and affected property and which incorporates specialized mitigation measures. B. Noise abatement programs shall set forth in detail the approved terms, conditions and requirements for achieving maximum compliance with noise standards and policies. Said terms, conditions and requirements may include, but shall not be limited to, limitations, restrictions, or prohibitions on operating hours, location of operations, and the types of equipment. (Ord. 95-38§ 11 (part), 1995) From: McKitterick, Gary Sent: Sunday, September 20, 2015 6:34 AM To:Tony Petros<Tony.Petros@lsa-assoc.com> Cc: Diane Dixon <ddixon@dianedixon2014.com>; anthony.petros@Isa-assoc.com; aharp@newportbeachca.gov; Steven Mills<smills@gcorlando.com>; 'Dixon, Diane' <ddixon@newportbeachca.gov>; McKitterick, Gary <gmckitterick@a llenmatkins.com> Subject: RE: Woody's Wharf Use Permit Amendment request No. UP2011-010 Tony and Diane, The City noise study was 12/21/12 and is flawed. It never measured my clients property for impacts.The staff report is void of any analysis on impacts to a multimillion dollar mixed use development. We have conducted a Noise study which we will submit and you should be aware the Woody's site, per Newport code has major code violations. The CC should be on notice that the existing condition of Woody's is causing adverse impacts on my clients investment..The staff report is flawed . We will present the materials Tuesday night but I am available for questions in advance for you or any of the CC members. Everyone should all be on notice of the staff error. Look at the package attachment 5 and 8 and see there was no analysis of noise and in attachment 8 our property is described as vacant commercial. We are a mixed use residential project. Gary S. McKitterick Esq. Partner 2 16-138 Allen Matkins Lack Gamble Mallory& Natsis LLP 1900 Main Street, 5th Floor, Irvine, CA 92614-7321 (949) 553-1313 (main) (949) 851-5432 (direct) (949) 751-8270 (mobile) (949) 553-8354 (fax) .t Hen Matkins From: McKitterick, Gary Sent: Saturday, September 19, 2015 4:59 PM To:Tony Petros<Tony.Petros(@Isa-assoc.com> Cc: Diane Dixon <ddixon@dianedixon2014.com>; anthony.petros@Isa-assoc.com; aharp@newportbeachca.gov; McKitterick, Gary<gmckitterick@allenmatkins.com>;Steven Mills<smills@gcorlando.com> Subject: Re: Woody's Wharf Use Permit Amendment request No. UP2011-010 Tony not sure what you mean? We have a huge investment that we purchased based on a set of assumptions including the use and compliance by Woody's with its existing use permit. It is important to know the staff report is flawed.They did not adequately evaluate the adjacent impacts. We will submit evidence of violations. If you need to have facts before closed session on the settlement let me know. Gary McKitterick gmckitterick(c@a llenmatkins.com Work 949-851-5432 Cell 949-751-8270 On Sep 19, 2015, at 8:09 AM, McKitterick, Gary<gmckitterick@allenmatkins.com>wrote: Dear Diane and Tony, I will address the CC on Tuesday on behalf of my client who is adversely impacted by the late night noise and behavior of the immediately adjacent property.The expansion of operating intensity for a business who already is non-compliant with existing rules is not good governance by the City. There are standards that should be objectively applied to maintain a livable balance for the citizens of Newport Beach. Please note the staff report) does not accurately describe the mixed use project owned by my client. Residential units are in close proximity to Woody's. The report does not make a proper analysis of adverse impacts to our property. Ask the staff if they have conducted a noise and impact study? Remember in 2013 our property was a plan but in 2015 we are under construction and the staff must evaluate the most impacted property.The staff has failed to evaluate the impacts to our property. I also addressed the CC in October 2013 and incorporate my prior comments into the record for this hearing. I would ask the City to please make that transcript available to incorporate the objections. 3 16-139 This would be consistent with the will of the people, and also help eliminate the inordinate burden that this operator has proven to cause. Thank you. Denys Oberman Resident and stakeholder, Balboa Penninsula .................................................................................................................................. Regards, Denys H. Oberman, CEO *� BERMAN S°Wegy and financial Advisers OBERMAN Strategy and Financial Advisors 2600 Michelson Drive, Suite 1700 Irvine, CA 92612 Tel (949) 476-0790 Cell (949) 230-5868 Fax(949) 752-8935 Email: dho(cDobermanassociates.com CONFIDENTIALITY NOTICE: The documents accompanying this transmission contain confidential information belonging to the sender which is legally privileged. The information is intended only for the use of the individual or entity named above. If you are not the intended recipient,you are hereby notified that any disclosure,copying,distribution or the taking of any action in reliance on the contents of this telecopied information is strictly prohibited. If you have received this transmission in error,please notify us immediately at 9491476.0790 or the electronic address above, to arrange for the return of the document(s)to us. 2 16-140 From: Harp, Aaron Sent: Tuesday, September 22, 2015 7:32 AM To: Brown, Leilani Cc: Torres, Michael Subject: FW:Woody's Wharf Use Permit Amendment request No. UP2011-010 Attachments: Building A - 2nd Floor.pdf; Building A - 3rd Floor.pdf; Building G - 2nd Floor Plan.pdf; Building G - 3rd Floor.pdf; Building H - 1st floor.pdf; Building H - 2nd Floor.pdf; Building H - 3rd floor.pdf; NorthSite Plan.pdf Additional correspondence. From: McKitterick, Gary [mailto:omckitterick(alallenmatkins.com] Sent: Monday, September 21, 2015 2:34 PM To: Harp, Aaron Cc: Mills Consulting; McKitterick, Gary; Saulus, Mary; Dixon, Diane Subject: FW: Woody's Wharf Use Permit Amendment request No. UP2011-010 Aaron, The staff report is materially incorrect when describing the location of residential units. Our plans are on file with the City. Building H 3rd floor(13 feet) and 2nd floor(16 ft) from PL. From:Justin Park [mailto:iustin.park(mwieland-davco.com] Sent: Monday,September 21, 2015 12:22 PM To: McKitterick, Gary<gmckitterick@allenmatkins.com> Cc: Mills Consulting<steve@millsconsultine.net>;Jerry Conrad <iconrad@ocoffice.net>; Graham,Susan <sgraham@allenmatkins.com>; Saulus, Mary<msaulus@allenmatkins.com> Subject: RE:Woody's Wharf Use Permit Amendment request No. UP2011-010 Please see attached drawings. There are 12 residential units within 100'of the PL, within'buildings H;A, Thanks, Justin Park Sr. Project Manager Wieland-Davco Corporation Mobile 517-819-0784 Confidentiality Notice: The information contained in this electronic e-mail and any accompanying attachment(s) is intended only for the use of the intended recipient and may be confidential and/or privileged. If any reader of this communication is not the intended recipient, unauthorized use, disclosure or copying is strictly prohibited, and may be unlawful. If you have received this communication in error; please immediately noti fy the sender by return e-mail, and delete the original message and all copies from your system. Thank you. t 16-141 e • � e v �.— ____ _ _—_ �_� n ��e ,� �e ill ...... []ph ... .. C?.� r r: .._. �� ❑=n � ��. �� "�' r/-, •tC�1i �•� i`�� �1 5_C7i � m iC�7r� �I���j � � iI.7�� �-,�C�7 S�In11Cii .., IICI{eIl r■ImIICii 9 IlClnil r■I�olCll -.i. IlClml � I�,'ICII I II 11 c�r.Jl �ji �• 11 � ■� 11. ATI�II�' 11 �J All �Iid11�� 11 �—_ All , ice+ �Illllln �,� _�, ��CIIIII�.IIIIIC„ .� , s „CIIIII�.IIIII�■ �i � ��CIIIII��,�IIIII��� ,��,� AA al � n■ �� � a AM D. 11 a] m n■ it �a 11 s IA Ia Ir - -�� i � Biu m•a MMI CIM la � 31 9N."ry.�¢ �S �1P4�P� � � B�E91��1ro r' P.9H� �FI_4EIH^�.'cacl �1 �Ipe�&J BILA - �� �Ivfo. � �a'�'h_,.a. 3�tii 3i�u �a 3i r S. a �T�i n �5 ku�.rJ 'B g viu.. i ..:J �P�P �-.-� � �& e � e ,_o � 4 o— o ��' �� �_ � �� ��, . �` �I� A' m �' mP A m ',.Q',�� A � m A � m .y � m fyA A m �' �;� A m � ��! �� .. I �� - � a _.•A �. � 4 .. f ��� Y` /�yA Fl .� ��A � L� ���� `� A� l rA�� AYE '( 'I�4.�..Je A'A�'j� ��e i��`_ ��n ai�;w� C����,� '�a,�' a '�� ���1� +`.���J�\ �•�r,�► ��ir�rr���lr���`1���=- ��il�ir�. .�Yn��+•vim Wrrt�r•�t�l'��ii.�..�..�i.•� �! II�`�:iii:�G1iY.YfIJ 1�a__ •:.�r .�-��f�r-��oin It�..��.,,,:-..77�r.r::1�Y�w�iil�r� �T.._ ��'1�� ° � � � �. fir , ��.�„ a ,� e � A A- � � � �� �� � /I — Er �h,.p���1 0 ��Al��il"�"1� ��`i �!hI���•moi� � ���Al����.�� ����� ��� �r •1io1► �r ��� o- _� jam® �� m lrir ' � �leo '.� u7� • „—J -- �1►�I®�� �ii�, ��z�l►t�11►/1m=�i ' o� �=®I►t^ 1►�i1l;� �i�u,, ;,,=o1►t11►�I®='� ��D,�, � .p.�hi' _ �� '� 1NN �� 1•i Y•1 I�� ^ „W .• I� Y,i 1�1 i 111�`I_ 11 N �� fit, N ,i��.� �Li. V Y._ �iJ��� �i V Fig i� �.�,�'�' y Y ►'_ iJ�fiy �' 9 ' �t,rra.�tiaWav��rr�gr�vNr r�r.��.wm r�-r�ryr��u�r�c�-��Ya����a r•ti�r�� r`�� rrr�,�'-�r�' �• �� Grp QYA � �'�' � � QVA �. p.,'m n r IY ' E I aimIt cv-r• � LSA •-r• � i �' t331j;1 � Imo• e l`�iz'' �-,. I d II�� lip,rs � e -- 09 II _ � �IIII � /. 1•�a'r.�� ��\\\I��I �— I I� �� r y I� ill P • i � © (� ,_ � 7I ii�� ����mi sit �WrWI ` Yillp► Ire •,�'/�f�� ��>.`� � � _-= til IlI17 ■II�>• ii�itf�� � ` jy��t��r,.�iJ�S��� a q�: � t��t�a' I��nr t ;"SII .�� �—I a� lr......�_.r ..-i,�� ,-.1:: 111• Ilol 1 t— I' �1� I �.-s• eer 7 t• • t � r1'i' �I WWI i7Ti7. � �li—_I����a _ y�A� © kms: Lj � �, l•A�?A l�� •.7 a ��`�� �Illi_I�� ul! �� I�l����t�� �_' � �I.��:a�.. I;� ._ �[• :3����11 `} � ! III MOVIESLIMMM ���� 91 MIMIM I� 011FAM .�1 �iilil I�ME o lh1 !',��loo --- - -moo "- OO '�I►�I'' "` -� see 90,12 arras r� r . . ill '��'�i�� �o��► � «� �iiiiiiiiiii�i��.� Il�...r,...-� li• = INS �/.9-0goli0� 'f T ���/ �r�� l E lo I� �\'7•Ilf� m =� J G r ME g��I,III.� OFFICEHi �11 ool-�mo 0 II m F J J I e ' �iilui o o � u ��-� I�•� :S�o L�li%@�-ice • ,m� 104 nonlVn"um�le 6. �r I 11■ILMPAI■IL JI■IEVIJI■IL�JIMLWSWI■ . /ml"w/11"w/1l�al"W/m 1�11 id,NUNN— � � �` �►�gym'1 eil'.'T+ie.l I I�•1_ o'i'_.• reu'tl f:_"' l :: r ;_. •ei :: e_eil...:i,�=�_ r.'..Vit`- %7�_::-.•:I:•'.^iS�i'.Iiiiiei3S3` ' IMPil BUILDIN RM i I G G hII � Imo--- i Imo`• � �F-i�_. ff JI •die. Eiw jl ����i _a�� a II uuw 4 14:': frl�I•�r Imo' ■ _lO a;��s ` \ u. /!!>,"w4 I%glLl^elm\I'�1 Sae'ucy�l I . , .3r1u�u�li'. •€ �. ■-rats'3R�,`e � r� �P � �:�L.� \ ' II1Igs6�li u�l�N. 9e_ i 11 '2RI I, e.�'s � _I Y•I;I I I����1� � ��3ie::eS IM. I on - I j •"I� 1�1 r _ p i IN �III'�II 11;1111► — al ll�ll Ilillll► — I w e'•e" u u:IT,41 I7i` e. . 1 � ,loon �IIIIIII�I�IIIIIII �IIIIIII� �Illllll _- mill ulllll■at�l���'�.� p �� 1 ♦ •rP eei I 9 .: u � fir Yp'4eiee. 'eieie.. J I r t I !� ro:'. peep. �eil Opr :i Qppip a ei.• !. ® r BUILDING ABUIL I e •:4':- I I I � N��eipee`e ' � • � �,j•4�•44�ee`i, _ r ecce _ r E �j tdeeleer� .. e. ►�/ l �RI+x"19 I�'✓aRSQ'P @.�■=1A xW. ■fi v" IEY ag es•. -'��Y�. Lee% �� I�IILN_1ss ¢x rasa o`aAc—s�II7� ��_�, et L.d Le•:�� �'�Ye .-�.r..ao��s MMzaWMexwxad -- • - '� I �� fir , „ N . a ®�.���•�: w w w From: Harp, Aaron Sent: Tuesday, September 22, 2015 10:40 AM To: Brown, Leilani Cc: Torres, Michael Subject: FW: Acoustical consulting test results Attachments: Exec Summ Itrhd.pdf; Building H - 3rd floor.pdf Importance: High Hi Leilani, An additional submittal by Mr. McKitterick. From: McKitterick, Gary [mailto:amckitterick(lallenmatkins.coml Sent: Tuesday, September 22, 2015 10:19 AM To: Harp, Aaron; Dixon, Diane; Brandt, Kim; Tony Petros Cc: Mills Consulting; McKitterick, Gary; Saulus, Mary; Torres, Michael; 'Jerry Conrad' Subject: FW: Acoustical consulting test results Importance: High We will make a formal submittal of the acoustical report but to give you an idea of the significance of the code violations,see the attached executive summary. The code violations adversely impact my clients asset in a material way. We are in the process of early marketing of extremely high-end valuable residential real estate located next to Woody's. Kim, my clients plans for the mixed use development are on record with the City. However, to assist you in orientation to the residential unit location, we will be submitting some highlighted drawings. As an example, I have attached a depiction of our Building H third floor residential unit.As you see we have a residential unit approximately 13 feet from the Woody's PL.The Nighttime Noise Standard (15 min Leq) is 50 dB(A) for the exterior of this unit. Gary S. McKitterick Esq. Partner Allen Matkins Leck Gamble Mallory& Natsis LLP 1900 Main Street, 5th Floor, Irvine, CA 92614-7321 (949) 553-1313(main) (949) 851-5432 (direct) (949) 751-8270 (mobile) (949) 553-8354(fax) Allen Ma-tkins From: Robert Schmidt (mailto:ras@rsacoustics.com] Sent: Monday,September 21, 2015 7:45 PM To: McKitterick, Gary<gmckitterick@allenmatkins.com>; 'Steven Mills'<smills@ecorlando.com> Cc: 'Jerry Conrad' <Iconrad@ocoffice.net> Subject: RE:Acoustical consulting proposal 1 16-150 Attached is an executive summary of the measurement program results. Please feel free to call with any questions or if you need additional data. Robert Schmidt Principal s 1 RS ACOUSTICS INC 25031 Avenue Stanford,Suite SO - Santa Clarita,CA Email: ras@rsacoustics.com Office: (661)251-3965 Mobile: (661)212-1330 Confidentiality Notice: The information contained in this electronic e-mail and any accompanying attacllment(s) is intended only for the use of the intended recipient and may be confidential and/or privileged. If any reader of this communication is not the intended recipient, unauthorized use, disclosure or copying is strictly prohibited, and may be unlawful. If you have received this communication in error, please immediately notify the sender by return e-mail, and delete the original message and all copies from your system. Thank you. 2 16-151 RS ACOUSTICS INC 25031 Avenue Stanford, Suite 80 Santa Clarita, CA 91355 P: (661) 251-3965 F: (661) 310-3783 EXECUTIVE SUMMARY-NEWPORT BAY MARINA/WOODY'S WHARF Nighttime acoustical tests were conducted on Thursday Sept 17 through Saturday Sept 19 Thursday at the Newport Bay Marina project to determine noise levels generated by Woody's Wharf directly north of the project site. Measurements were conducted directly at the property line, the residential patios at the east elevation nearest the Woody's Wharf property line, and near the property line along the west elevation of the proposed mixed use building. During the nighttime, noise levels steadily increased until reaching their peak at approximately 11:30 p.m.to 12:00 a.m.then remained fairly steady until 1:45 a.m. when Woody's Wharf closed. Noise levels measured at the residential properties exceeded the Leq-50 dB(A) nighttime Newport Beach noise standards during all tests. The table below shows the location of acoustical tests, time of measurements, and the amount of exceedance of the Newport Beach noise standards. Summary of Acoustical Test Results Nighttime Noise Measured Levels Measurement Property Standard Measurement Times During Woody's Noise Standard Location Type (15 min Leq) Operation(15- Exceedance min -Leq) Property Line 10:00pm-1:45am 67-73dB(A) 7-13dB(A) near waterline Commercial 60 dB(A) (Thursday 9/17) 1:45 am-2:00 am 62 dB(A) 2 dB(A) Level Patio- Residential/ East Elevation Mixed use 50 dB(A) 10:00 pm-12:00 am 58-65 dB(A) 8-15 dB(A) (Friday 9/18) Level 3Patio- 12:30 am-1:45 am 64-67dB(A) 14-17dB(A) East Elevation Residential/ 50 dB(A) (Friday 9/18) Mixed use 1:45 am-2:00 am 60 dB(A) 10 dB(A) Level 3Patio- Residential/ 10:00 pm-1:45 am 63-68dB(A) 13-18dB(A) East Elevation Mixed use 50 d6(A) (Saturday 9/19) 1:45 am-2:00 am 62 dB(A) 12 dB(A) Property Line Residential/ 50 dB(A) 12:15 am-12:30 am 62 dB(A) 12 dB(A) near front of Mixed use buildings. Commercial 60 dB(A) 12:15 am-12:30 am 62 dB(A) 2 dB(A) (Friday 9/18) C:\Users\Public\Documents\Projects\Newport Bay Mari na\Re port\Executive summary.docx Consultants in Architectural Acoustics & Noise Control 16-152 J J I e ' �iilui o o � u ��-� I�•� :S�o L�li%@�-ice • ,m� 104 nonlVn"um�le 6. �r I