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HomeMy WebLinkAbout3.0 - The Village Inn Outdoor Dining and Land Use Amendments_PA2015-016 - PA2015-016 CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT October 20, 2016 Meeting Agenda Item 3 SUBJECT: The Village Inn Outdoor Dining and Land Use Amendments (PA2015-016) 123 and 127 Marine Avenue Conditional Use Permit No. UP2016-012 APPLICANT: Dan Miller, Village Inn Management OWNER: Charles Kinstler PLANNER: Brenda Wisneski, Deputy Community Development Director (949) 644-3297, bwisneski@newportbeachca.gov PROJECT SUMMARY The project consists of the establishment of a 200 square foot outdoor dining area to be located in front of The Village Inn restaurant at 127 Marine Avenue, within the public right-of-way. The outdoor dining area would displace existing bikes which would be relocated to a designated area at 123 Marine Avenue. If approved, the City Council will consider the encroachments associated with the outdoor dining area, in accordance with Council Policy L-21. Pursuant to Chapter 5.25 of the Newport Beach Municipal Code, the Conditional Use Permit requires the owner/operator to obtain an Operator License from the Newport Beach Police Department. RECOMMENDATION 1 ) Conduct a public hearing; 2) Adopt Resolution No. _ approving Conditional Use Permit No. UP2015-012 to establish an outdoor dining area associated with The Village Inn located at 127 Marine Avenue (Attachment No. PC 1). 1 V� QP �P The Village Inn Outdoor Dining Planning Commission, October 20, 2016 Page 2 VICINITY MAP 21 ^2),F, 1z 3 21 , .z-273. ► 209 7 2,U 2„ • ' 2.77 �� ' fig. --20911 A ;20 T� 16 -1 20fi �. ,r 207F �2p.-i-fir r■ 1 4 Fa p"�a,�20]�1'Z1o�s^` � 204 /�S2o3j '1�2az t- Zol Wit= s 0 1-204 ,!:M201 2201 200 �130�4 130E x01 �� .• IIS6 1205 '1-207 , 7 '1305 ? •T - :�Qo�° IP 124 x,27 7: zvz i '� � -- I •Lz1� F 1 '. �Xft � I ,�i z,r/•z1q " nnn I 9 I{{ 118 119 718 7191/2 l 19 L ° `' 1 115 I _i�11•-24112 115 '11� W II 17 . . ,16ey � p1111-uC —�11 t 617 _�all GENERAL PLAN ZONING a.RT ..RT RAI RAI - - - RBI R-81 ' - RT - - - MU.W2 RBI.. - .. RT RT:. RT Rel R B1 RAI .. :..PF .. RBI RT PF 1J.W2 RBI,. T ... .< RT- ..RT = - RAI R81 RAI r :. ❑ .. AI' PF 'AMU PF _ RT MU W2 RT. .. R 8. RBI RT. RT �. �.. „ B1 REI R.BI - R.B1 _ F RT RBI RAI RT . RBI RAI R-BI. RT ., RT RT .� m ¢ rc' - _ - _ 05 - 05 LOCATION GENERAL PLAN ZONING CURRENT USE ON-SITE Mixed Use Water Related Mixed Use Water Related Restaurant/Residential Residential —Two Unit Residential —Two Unit Residential Unit Vacant NORTH Mixed Use Water Related Mixed Use Water Related Real Estate Office SOUTH Residential —Two Unit Residential —Two Unit Two Units EAST Public Facility Public Facilit Fire Station WEST Residential —Two Unit Residential —Two Unit Residential 3 The Village Inn Outdoor Dining Planning Commission, October 20, 2016 Page 3 INTRODUCTION Project Setting The project site is located on Balboa Island on the southwest corner of Marine Avenue and Park Avenue. Balboa Island consists of mostly residential properties, with Marine Avenue as the commercial center of the Island. Along Marine Avenue are a variety of retail sales and service uses including restaurants, ice cream and frozen yogurt shops, clothing boutiques, hair salons, and coffee shops. A fire station is located across the street, to the east of the property. Single-family and two-unit residences are located south of the property. The Village Inn occupies a two-story building at the corner of Marine Avenue and Park Avenue. The lot is approximately 4,500 square feet in area. The Village Inn restaurant is on the first floor with a residential unit on the second floor. The restaurant is nonconforming in terms of required off-street parking. The restaurant operates from 7:00 a.m. to 12:00 a.m. daily with a Type 47 Alcoholic Beverage Control License and live entertainment. A portion of restaurant structure, which is utilized for kitchen operations, encroaches onto the residential property to the south, at 123 Marine Avenue. This property is improved with an upper level residential unit and attached two car garage. The restaurant encroachment is a nonconforming use on the residential property and is therefore subject to the City's abatement procedures. The subject property and 123 Marine Avenue are owned by Charles Kinstler who purchased this property in April 2012. Background The restaurant was established when a use permit was not required. In 2002, a permit was issued allowing for live entertainment at The Village Inn. On March 19, 2009, the Planning Commission authorized the remodel of the restaurant which included converting dining room seating into bar seating by approving Use Permit No. UP2009- 002. The Planning Commission also found the Use Permit to be consistent with provisions related to Alcoholic Sales in accordance with the Municipal Code. The Use Permit included conditions to minimize potential impacts to the surrounding neighborhood which include: • Condition #27 — No dancing shall be permitted on the premises. • Condition #29 — Closing the restaurant by midnight. The restaurant could previously operate to 2:00 a.m. The Village Inn Outdoor Dining Planning Commission, October 20, 2016 Page 4 • Condition #30 — Planning Commission to conduct one-year review. The review was conducted on April 8, 2010 and the business was determined to be in compliance with the Use Permit. • Condition #31 — The doors facing Park Avenue shall be used for emergency use only after 8:00 p.m. A revised Live Entertainment Permit was issued in 2009 to include the following conditions (Attachment PC 5): • Condition #5 — Live entertainment shall consist of no more than five musicians. • Condition #9 — All exterior doors and windows shall remain closed during live entertainment events. On December 3, 2015, the Planning Commission considered Use Permit No. UP2015-006 for a similar request to establish an outdoor dining area. The Use Permit application was accompanied by a request to amend the land use designation at 123 Marine Avenue to accommodate an encroachment of the restaurant structure on that property. Because the action included a legislative action, the City Council was the final decision-making body (GP2015-002, LC2015-001, CA2015-010). The Planning Commission recommended denial of Use Permit No. UP 2015-006 and continued the land use amendment. The Planning Commission expressed concerns with increased noise created by the outdoor dining area and open doors, and uncertainty with the location of the bike racks. Minutes from the December 3, 2015 Planning Commission meeting are provided as Attachment PC 3. To allow further consideration of the subject applications, the applicant withdrew both applications. Project Description The applicant requests a Conditional Use Permit to establish a 200 square foot outdoor dining area in front of the restaurant located at 127 Marine Avenue. The windows along the front elevation would be replaced with glass, accordian doors. The area would be improved with a raised concrete pad in order to be at the same level as the finished floor of the restaurant for ADA access. The dining area would be enclosed with a 42- inch-high wrought iron guardrail and accommodate up to 7 tables and 16 seats. The sidewalk would be maintained at 6-feet wide. The conceptual plans for the outdoor dining area are provided as Attachment PC 8. The proposed location is within the public right-of-way which currently is occupied by racks to accommodate 20 bikes. The applicant proposes to relocate upgraded bike racks to accommodate the same number of bikes onto 123 Marine Avenue and establish an access easement for the public's use of the racks. The area would be 12'x135' in size, is situated along restaurant property line and would be bordered by landscaping. Details of the bike area are depicted on the site plan. The Village Inn Outdoor Dining Planning Commission, October 20, 2016 Page 5 DISCUSSION Establishment of the outdoor dining area constitutes a major change to operations, therefore, an amendment to the Use Permit is required. Locating the bike racks on the adjacent property does not require a Use Permit or other discretionary approval. The proposed encroachment will require review and approval by the City Council to waive specific elements of Council Policy L-21 (Sidewalk Cafe Standards and Procedures). Areas for the Council's consideration are the need to raise the dining area 6-inches above the sidewalk, allowance of a 6-foot wide sidewalk instead of 8-feet, the permanent nature of the guardrails, and the projection of the accordian doors into the right-of-way. General Plan and Coastal Land Use Plan Consistency The restaurant property at 127 Marine Avenue is designated as Mixed Use Water Related (MU-W2) by the Land Use Element of the General Plan, Coastal Land Use Plan (CLUP) and Zoning Code. Outdoor dining areas are consistent with the MU-W2 land use category, which is intended to provide for marine-related uses including retail, restaurants, and visitor-serving uses with residential on the upper floors. The proposed project is also consistent with the CLUP designation, which is intended to provide for commercial areas with limited residential development permitted above the first floor. Zoning Consistency The restaurant property at 127 Marine Avenue is designated as Mixed Use Water Related (MU-W2) by the Zoning Code. Eating and drinking establishments are permitted within this district subject to the approval of a use permit. An addition to the restaurant was previously completed which encroaches onto 123 Marine Avenue. The property at 123 Marine Avenue is developed with a two-story, single-family residence and is zoned Two-Unit Residential, Balboa Island (R-BI). The City is unable to locate building permits for the building addition, however, aerial photos indicate the encroachment has been in place prior to 1989. To remedy this issue, the applicant previously applied to amend the residential property to MU-W2 and merge the properties. The Planning Commission considered the application on December 3, 2015 but expressed concerns with the land use change and directed staff to explore other options which would allow the property owner to maintain the encroachment. Legal Non-Confirming Status of 123 Marine Avenue After considering several options, it was determined that the best course was to determine that the encroachment was a legal, nonconforming on the basis that it is a non-residential use on a residential property. This approach allows the property owner to request an extended abatement period (typically up to 10 years) to allow them to 0 The Village Inn Outdoor Dining Planning Commission, October 20, 2016 Page 6 consider broader options, which may include redesigning the restaurant, applying for a land use change, or requesting an additional extension. The Community Development Director issued a Determination of Nonconforming Status on August 30, 2016, provided as Attachment PC 4. Nonconforming uses are subject to the abatement procedures detailed in Zoning Code Section 20.38.100 and shall be discontinued within one year unless an extension is granted by the Hearing Officer. Abatement extensions have been granted for as long as 10 years. The City's Hearing Officer is scheduled to consider the 10 year extension on Monday, October 20, 2016. The results will be shared at the Planning Commission meeting. Parking No parking is provided for either the restaurant or the residential unit on the second floor. Chapter 20.40.040 (Off-Street Parking Spaces Required) of the Municipal Code excludes outdoor dining areas which are less than 25 percent of the interior net public area, or 1000 square feet, whichever is less. The proposed area is approximately 200 square feet; therefore no parking is required for the establishment of an outdoor dining area. Hours of Operation The restaurant operates 7:00 a.m. to 12:00 a.m. daily. The outdoor dining area is proposed to be open beginning at 7:00 a.m. and closing when live entertainment starts. Similar to other outdoor dining areas in mixed use zones, a condition has been included in the draft resolution requiring the doors leading from the restaurant to the outdoor patio to be closed prior to live entertainment commencing. Similarly, to ensure the glass doors provide noise attenuation, a condition has been included requiring the glass to be sound-rated. The specific hours of the outdoor dining area is proposed as follows: Winter - Sunday to Thursday 7 a.m. to 9 p.m. Summer, Weekends (Friday and Saturday), Major Holidays or Comunity Events 7 a.m. to 10 p.m. The outdoor dining area shall be closed when live entertainment is offered, which may be earlier than the hours shown above. Acoustical Analysis The applicant commissioned a noise analysis to evaluate the live performance operations and provide design mitigation. The analysis is provided as Attachment PC 5. The report recognizes that the property has been upgraded to incorporate the following noise reduction measures which results in noise levels at adjacent residential properties to be below the 50 dBA nighttime standard. The Village Inn Outdoor Dining Planning Commission, October 20, 2016 Page 7 • Existing windows upgraded with dual pane system with a STC rating of 34 • Southern door replaced with an insulated metal door • Weather-tight door stop seals and improved thresholds installed in all entrance doors Although noise levels meet the standards, to maximize the effective of noise reduced measures, the analysis further recommends the following: • Install interior acoustical absorption panels to reduce interior noise levels. • Ensure folding windows seals at all edges are maintained in good condition (top, bottom and between windows). • Maintain, in good condition, air tight seals at all entrance doors using industry standard Pemko door seals and threshold system products. These recommended improvements have been included as conditions of approval. Police Department Review The Police Department reviewed the application and provided statistical crime data related to calls for service in and around the project site. The Police Department's memos dated November 4, 2015 and April 26, 2016, are provided as Attachment PC 6. Complaints regarding excessive noise have been made on several occasions. In response the Police Department has advised the restaurant, but some of the calls were "unfounded". No other violations were identified. The Police Department concludes that, should the Use Permit be approved, the change in business operation would require that an Operator License be issued by the Police Chief. A security plan will be required with the License. The Operator License will provide for enhanced control of noise, loitering, litter, disorderly conduct, parking/circulation and other potential disturbances resulting from the establishment, and will provide the Police Department with means to modify, suspend, or revoke the operator's ability to maintain late hour operations. Conditions of approval have also been submitted by the Police Department. Relocation of Bike Racks Establishment of the outdoor dining area would displace twenty (20) existing bike racks which are highly used by the community, not just patrons of Village Inn. Several alternative locations were considered with the need to establish the same number of racks. The following describes the locations considered and why they were rejected: Park Avenue, adjacent to Village Inn — rejected because inadequate area. Racks would encroach onto sidewalk. 8 The Village Inn Outdoor Dining Planning Commission, October 20, 2016 Page 8 • Fire Station property — rejected due to lack to space to accommodate racks for 20 bikes. • Disperse along 200 and 300 Marine Avenue — detailed analysis was conducted of this option to determine if location and spacing requirements would meet the need. Although adequate space was identified to accommodate more than 20 bikes, it was rejected by the City's Public Works department due to concerns with an overabundance of other items in the right-of-way (i.e., benches, newspaper racks). The bike racks are proposed to be relocated on 123 Marine Avenue. The area would be approximately 420 square feet and would be oriented along the Village Inn structure. The area would be concrete with landscape screening along the southern edge. While discretionary approval is not required to establish the bike racks, concerns have been raised from adjacent neighbors regarding increased activity and noise closer to their homes. Therefore, neighborhood compatibility should be discussed. The existing bike racks are located approximately 40 feet from the nearest residence, which is at 121 Marine Avenue. The proposed location would be approximately 20 feet from this residence. The bike racks are heavily used. However, there is no evidence that they encourage loitering or generate high levels of noise, other than members of the public conversing with one another. Nevertheless, in an effort to address the neighbors concern, the applicant proposes additional landscaping along the border of the bike area for increased screening. In addition, mature landscaping exists along the southern property line to screen the residence at 121 Marine Avenue. The location of the bike racks may also encourage riders to be more courteous of their surroundings, as compared to the previous location. The bike racks will be located at the front of a residential property which may make it more apparent that noise levels should be minimized. The proximity of the outdoor seating area and restaurant patrons may also inhibit misuse. Use Permit Findings Pursuant to Section 20.52.020 of the Municipal Code, the Planning Commission may approve an application for a use permit if the following findings are made: 1. The use is consistent with the General Plan and any applicable specific plan; 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; 3. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity; 9 The Village Inn Outdoor Dining Planning Commission, October 20, 2016 Page 9 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 5. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor 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 proposed outdoor dining area is consistent with the purpose and intent of the General Plan, Coastal Land Use Plan and Zoning Code. The existing restaurant serves residents and visitors and is conditionally permitted in the Mixed Use Water Related district. The outdoor dining area has been conditioned to reduce potential impacts to surrounding uses, including limiting hours of operation from 7:00 a.m. to 9:00 p.m. daily, and requiring sound attenuated materials. Doors to the patio, which are to be made of sound attenuated material, will be closed after 9:00 p.m. to maintain compatibility with the surrounding neighborhood. No violations warranting issuance of a citation have been identified. The business will continue to be required to comply with the conditions of Use Permit UP2009-002 and the City's noise ordinance. Summary The applicant requests a Conditional Use Permit to establish an outdoor dining area. Appropriate conditions of approval have been created to minimize potential impact on surrounding uses and the required finding can be made. Alternatives The Planning Commission may choose to modify or deny the Conditional Use Permit. If denied, the outdoor dining area at 127 Marine Avenue would not be constructed. A resolution of denial has been provided (Attachment PC 2). Environmental Review The project is categorically exempt under Section 15303, of the State CEQA (California Environmental Quality Act) Guidelines — Class 3 (Construction or Conversion of Small Structures) in that the improvements associated with the outdoor dining area are considered accessory to the main structure. Public Notice 10 The Village Inn Outdoor Dining Planning Commission, October 20, 2016 Page 10 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 before the scheduled meeting, consistent with the provisions of the Municipal Code. Additionally, the item appeared on the agenda for this meeting, which was posted at City Hall and on the City website. Prepared by: *na snes i,r ICP, Deputy Director ATTACHMENTS PC 1 Draft Resolution Approving Use Permit PC 2 Draft Resolution of Denial for Use Permit PC 3 Planning Commission Meeting Minutes, December 3, 2015 PC 4 Director's Determination PC 5 Acoustical Evaluation, KFEB Acoustics, March 20, 2016 PC 6 Police Department Memo, November 4, 2015 and April 26, 2016 PC 7 Site Photos PC 8 Project Plans 11 V� QP �P 2� Attachment PC 1 Draft Resolution Approving Use Permit 13 V� QP �P 2� RESOLUTION NO. #### A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING USE PERMIT NO. UP2016-012 TO ESTABLISH AN OUTDOOR DINING AREA ASSOCIATED WITH AN EXISTING RESTAURANT AT 127 MARINE AVENUE (PA2016-016) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Dan Miller, with respect to property located at 127 Marine Avenue, and legally described as Balboa Island Sec 4 Lot 15 Blk & Lot 16 Blk 1 Ex E 10 Ft Lots 15 requesting to establish an outdoor dining area associated with an existing restaurant. The proposed dining area would also require relocation of existing bike racks to 123 Marine Avenue. 2. The applicant proposes to construct a 200 square foot outdoor dining area located along the front of the structure on Marine Avenue. The proposed area is located within the public right-of-way. 3. The subject property is located within the Mixed Use Water Related Zoning District and the General Plan Land Use Element category is Mixed Use Water Related (MU-W2). 4. The subject property is located within the coastal zone. The Coastal Land Use Plan category is Mixed Use Water Related (MU-W). 5. On March 19, 2009, the Planning Commission approved an amendment to Use Permit No. UP2009-002 allowing for the remodel of the restaurant and determining the Use Permit was consistent with the zoning provisions for alcohol sales. Conditions of approval were established to minimize potential impacts from the restaurant operations to the nearby neighborhood. Use Permit No. UP2009-002, as amended, and related conditions of approval shall remain in effect. 6. On December 3, 2015, the Planning Commission considered Use Permit No. UP2015- 006 for a similar request to establish an outdoor dining area. The Use Permit application was accompanied by a request to amend the land use designation at 123 Marine Avenue to accommodate an encroachment of the restaurant structure on that property. Because the action included a legislative action, the City Council was the final decision-making body (GP2015-002, LC2015-001, CA2015-010). The Planning Commission recommended denial of Use Permit No. UP 2015-006 and continued the land use amendment. To allow further consideration of the subject applications, the applicant withdrew both applications. 7. A public hearing was held on October 20, 2016 in the Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the public 15 Planning Commission Resolution No. #### Page 2 of 8 hearing was given in accordance with the Newport Beach Municipal Code (NBMC). Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. The Planning Commission finds this action is categorically exempt under Section 15303, of the State California Environmental Quality Act (CEQA) Guidelines — Construction or Conversion of Small Structures because the improvements associated with the outdoor dining area are considered accessory to the main structure. The project is also categorically exempt under Section 15302, of the State CEQA Guidelines — Class 2 (Replacement or Reconstruction) on the basis that the land use amendment does not result in new development or change the current use of the property located at 127 Marine Avenue. SECTION 3. REQUIRED FINDINGS. In accordance with NBMC Section 20.52.020(F), the following findings and facts in support of such findings are set forth: Finding: A. The use is consistent with the General Plan and any applicable specific plan; Fact in Support of Finding: 1. The subject property is designated by the General Plan as Mixed Use Water Related. The proposed project is consistent with the MU-W2 land use category, which is intended to provide for marine-related uses including retail, restaurants, and visitor-serving uses with residential on the upper floors because the project consists of an existing restaurant and residential use. Finding: B. 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: 1. The subject property is located in the Mixed Use Water Related Zoning district. Eating and drinking establishments are permitted within this district subject to the approval of a use permit. 2. The outdoor dining area is proposed to be approximately 200 square feet in size which does not require parking under Table 3-10 in NBMC Chapter 20.40.040 (Off- Street Parking Spaces Required). Finding: 07-22-2014 10 Planning Commission Resolution No. #### Page 3 of 8 C. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity; Facts in Support of Finding: 1. The proposed outdoor dining area is located along Marine Avenue, an active mixed use commercial area with high pedestrian use. Outdoor dining areas are encouraged in mixed use areas as they contribute to the vibrancy of the area. 2. The subject dining area is limited to 200 square feet and extends four (4) feet from the building edge. The sidewalk would is maintained at six (6) feet which is adequate to accommodate pedestrian passage. 3. As conditioned, the outdoor dining area and glass doors will close at 9:00 p.m. or 10:00 p.m., as detailed in Condition of Approval No. 14. 4. As conditioned, the proposed glass doors are double paned (or similar material) to provide improved, noise attenuation, as compared to the existing exterior wall and windows. 5. The existing bike racks in the front of the property will be re-located to a designated area on 123 Marine Avenue. Finding: D. 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 Fact in Support of Finding: 1. Establishment of the outdoor dining area does not impact public and emergency vehicle access and public services and utilities, as the improvements are limited to a 200 square foot dining area and do not encroach into the roadway. Finding: E. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor 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: 1. The project includes conditions of approval to ensure that potential conflicts with surrounding land uses are minimized to the greatest extent possible. Closing the outdoor dining area at 9:00 p.m. and closing the glass doors will ensure compliance with NBMC Chapter 10.26 (Community Noise Control). 2. An acoustical analysis, prepared by KFEB Acoustics on March 20, 2016, concluded that with the implementation of proposed noise reduction measures the 07-22-2014 27 Planning Commission Resolution No. #### Page 4 of 8 love performances will comply with the City's nighttime noise threshold limit of 50 d BA. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach approves Use Permit No. UP2016-012, 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 (14) days following the date this Resolution was adopted unless within such time an appeal is filed with the City Clerk in accordance with the provisions of NBMC Title 20 (Planning and Zoning). PASSED, APPROVED, AND ADOPTED THIS 20th DAY OF OCTOBER, 2016. AYES: NOES: ABSTAIN: ABSENT: BY: Kory Kramer, Chairman BY: Pete Zak, Secretary 07-22-2014 12 Planning Commission Resolution No. #### Page 5 of 8 EXHIBIT "A" CONDITIONS OF APPROVAL 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.) 2. Use Permit No. UP2016-012 shall expire unless exercised within twenty-four (24) months from the date of approval as specified in NBMC Section 20.54.060, unless an extension is otherwise granted. 3. The project is subject to all applicable City ordinances, policies, and standards. 4. The applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this Use Permit. 5. This Use Permit may be modified or revoked by the 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. 6. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to this Use Permit or the processing of a new Use Permit. 7. A copy of the Resolution, including conditions of approval Exhibit "A" shall be incorporated into the Building Division and field sets of plans prior to issuance of the building permits. 8. All noise generated by the proposed use shall comply with the provisions of NBMC Chapter 10.26 and all other applicable noise control requirements in the NBMC. 9. 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. 10. No exterior amplified music, sound system, outside paging system shall be utilized in conjunction with the outdoor dining area. 11. 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 twenty (20) feet of the premises. 07-22-2014 29 Planning Commission Resolution No. #### Page 6 of 8 12. 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 NBMC to require such permits. 13. To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of the Village Inn Use Permit including, but not limited to, Use Permit No. UP2016-012. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant, City, and/or the parties initiating or bringing such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. 14. The hours of the outdoor dining area shall be limited to the following. Upon closing the subject area, the glass doors which access the area shall be closed. Winter- Sunday to Thursday 7 a.m. to 9 p.m. Summer, Weekends (Friday and Saturday), Major Holidays or Comunity Events 7 a.m. to 10 p.m. The outdoor dining area shall be closed when live entertainment is offered, which may be earlier than the hours shown above. 15. The glass doors, which provide access to the outdoor dining area, shall be noise attenuated. The effectiveness of the noise attenuation may be documented in the door specifications and reviewed during the plan check process. 16. Prior to finalizing the building permit for the outdoor dining area, interior acoustical absorption panels shall be installed. 17. The assumptions and recommendations presented in the Acoustical Evaluation and Design Recommendations reported prepared by KFEB Acoustics on March 20, 2016 shall be maintained by the restaurant pertaining to upgrades and maintenance of attenuating materials (i.e., door and window seals). 18. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The licensee shall at all times maintain records, which reflect separately the gross sales of food and the gross sales of alcoholic beverages of the licensed business. These records shall be kept no less frequently than on a quarterly basis and shall be made available to the Police Department on demand. 07-22-2014 20 Planning Commission Resolution No. #### Page 7 of 8 19. There shall be no reduced price alcoholic beverage promotions offered by the restaurant after 9:00 p.m. 20. Food service from the regular menu shall be available to patrons up to thirty (30) minutes before the schedule closing time of the restaurant. 21. Prior to occupying the outdoor dining area, the applicant shall obtain an Operator License from the Newport Beach Police Department. A security plan shall be submitted with the Operator License application. Building Division 22. The applicant is required to obtain all applicable permits from the City's Building Division and Fire Department. The construction plans must comply with the most recent, City- adopted version of the California Building Code. The construction plans must meet all applicable State Disabilities Access requirements. Approval from the Orange County Health Department is required prior to the issuance of a building permit. 23. Prior to issuance of building permits for the outdoor dining area, a building permit application shall be filed to address the life safety and structural issues associated with the portion of the restaurant structure which encroaches onto 123 Marine Avenue. 24. Prior to building permit final (certificate of occupancy) of the outdoor dining area, building permits shall be obtained for the portion of the restaurant structure which encroaches onto 123 Marine Avenue. 25. Structural plans shall be required for the expansion of outdoor dining. A building permit shall be required. 26. Wheelchair accessible path of travel to the area to the outdoor dining is required. 27. Delineate a wheelchair accessible seat in the outdoor dining area. 28. In addition to the requirements listed above, additional disable access upgrades are required which shall include: the entrance, bar counter, and/or restrooms. Accessible upgrades shall be limited to twenty percent (20%) of the value of the work for outdoor dining. Public Works 29. The applicant shall obtain an Annual Outside Dining Encroachment Permit from the Public Works Department and pay all applicable fees for the proposed outdoor dining area. 30. Prior to issuance of building or encroachment permits, the applicant shall obtain City Council authorization to waive City Council Policy L-21 as it pertains to specific 07-22-2014 21 Planning Commission Resolution No. #### Page 8 of 8 components of the outdoor dining area. Areas for the Council's consideration is the need to raise the dining area 6-inches above the sidewalk, allowance of a 6-foot wide sidewalk instead of 8-feet, the permanent nature of the guardrails, and the projection of the accordian doors into the right-of-way. 31. Prior to building permit final for the outdoor seating area, racks to accommodate no less than twenty (20) bike shall be relocated to 123 Marine Avenue. The location shall be consistent with the area designated on the approved site plan. The type of bike racks shall be approved by the Public Works Department. A public access easement shall be recorded for use of the area at 123 Marine Avenue. The bikes shall remain at this location, until such time, the Public Works Department authorizes an alternative location which may include areas in the public right-of-way. 07-22-2014 22 Attachment No. PC 2 Draft Resolution of Denial for Use Permit 23 V� QP �P RESOLUTION NO. #### A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH TO DENY USE PERMIT NO. UP2016-012 TO ESTABLISH AN OUTDOOR DINING ASSOCIATED WITH AN EXISTING RESTAURANT AT 127 MARINE AVENUE (PA2015-016) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Dan Miller, with respect to property located at 127 Marine Avenue, and legally described as Balboa Island Sec 4 Lot 15 Blk 1 & Lot 16 Blk 1 Ex E 10 Ft Lots 15 requesting to establish an outdoor dining area associated with an existing restaurant. 2. The applicant proposes to construct a 200 square foot outdoor dining area to be located along the front of the structure on Marine Ave. The proposed area would be located within the public right-of-way. The dining area would displace bike racks which accommodate 20 bikes. These bike racks would be relocated to 123 Marine Avenue. 3. The subject property is located within the Mixed Use Water Related Zoning District and the General Plan Land Use Element category is Mixed Use Water Related (MU-W2). 4. The subject property is located within the coastal zone. The Coastal Land Use Plan category is Mixed Use Water Related (MU-W). 5. On March 19, 2009, the Planning Commission approved Use Permit UP2009-002 allowing for the remodel of the restaurant and determining the Use Permit to be consistent with the zoning provisions for alcohol sales. Conditions of approval were established to minimize potential impacts from the restaurant operations to the neighborhood. UP2009-002 and related conditions of approval shall remain in effect. 6. A public hearing was held on October 20, 2016 in the Council Chambers at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. Pursuant to Section 15270 of the California Environmental Quality Act (CEQA) Guidelines, projects which a public agency rejects or disapproves are not subject to CEQA review. 2.5 Planning Commission Resolution No. #### Page 2 of 3 SECTION 3. REQUIRED FINDINGS. The Planning Commission may approve a use permit only after making each of the five required findings set forth in Section 20.52.020.E (Required Findings). In this case, the Planning Commission was unable to make the required findings: 1. The use is consistent with the General Plan and any applicable specific plan; 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. 3. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity; 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 5. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor 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. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach hereby denies Conditional Use Permit No. UP2016-012. 2. This action shall become final and effective 14 days following the date this Resolution was adopted 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. PASSED, APPROVED, AND ADOPTED THIS 20TH DAY OF OCTOBER, 2016. AYES: NOES: ABSTAIN: ABSENT: BY: Kory Kramer, Chairman 03-03-2015 20 Planning Commission Resolution No. ##ff# Page 3 of 3 BY: Pete Zak, Secretary 03-03-2015 27 V� QP �P �g Attachment No. PC 3 PC Meeting Minutes December 3, 2015 29 V� QP �P 30 NEWPORT BEACH PLANNING COMMISSION MINUTES 12/3/15 cretary Koetting commented on other restaurants in the area open for lunch only. In response to his qu tion, Mr. Mathews reported that the original entitlement would allow a shopping center of 51,000 square feet 'th 32,000 square feet designated for restaurant use. With approval of the expansion, the square footage r restaurant use would be close to 34,000. Discussio\erted wed regarding the number of retailers closed after 8:00 p.m. and the peak traffic period. Secretarytti stated that he is familiar with the center and that only two retailers close by 7:00 p.m. Others clt 8: p.m. or 9:00 p.m. Additionally, he stated that Mozambique is closed and wondered whether till be re ricted to retail once the Wasa Sushi expansion is approved. Mr. Mathtated there no current application for that site. He noted that the market dictates how the applicatiome forward. reported that the expansion is not creating an impact on adjoining areas and that it is sible to park to maximum, when you have such a small site. Development is not peak driven. CommissHillgren referenced the arking Management Plan and asked what the solution would be if it turns out arking is an issue, within ear.Mr. Mathtated that the Commission cou add a condition requiring a status update. In terms of limiting other foos in the center, going forward, S for Planner Ramirez reported that the vacant Mozambique could be pied as a restaurant based on the xisting use permit. Retail spaces would have to remain retail. CommissHillgren acknowledged steps included in t project that will mitigate parking challenges. Vice Chair Brown stated sharing Secretary Koetting's conc\ea regarding valet parking. He suggested that, in addition to requiring valet parking during the day, the Csion may want to look at ways to make it clear to all patrons that valet parking is available for everyor. athews agreed to such conditions. Vice Chair Brown asked to add a condition requiring an uof the roject within one year, and another making it clear to all patrons of the availability of valet parki Chase Gilmore, The Irvine Company, stated that valet parkiopen during I ch time. Mr. Mathews noted that new proposed uses would need to iewed by the City. Vice Chair Brown closed the public hearing. In response to Commission Zak's question, Senior PlRamirez reported that s received nocommunication from tenants orthe public, with concerns reg the project.Motion made by Commissioner Hillgren and seconded by Cosioner Lawler to adopt Resolution s. 2002and 2003 and Conditional Use Permit Nos. UP2015-03UP2015-035 subject to the condi ns of approval provided in the draft resolution and with added cons requiring a status update in one yea ndpotential modification to the Parking Management Plan, essary, and communicating to patrons t e availability of valet parking. AYES: Brown, Hillgren, Koetting, Lawler,Weigand, Zak ABSENT: Kramer ITEM NO.4 THE VILLAGE INN OUTDOOR DINING AND LAND USE AMENDMENTS (PA2015-016) Site Location: 123 and 127 Marine Avenue Assistant City Attorney Torres advised the Planning Commission under this item, it will consider a General Plan amendment, a Coastal Land Use Plan amendment, a Zoning Code amendment and a Conditional Use Page 4 of 11 31 NEWPORT BEACH PLANNING COMMISSION MINUTES 12/3/15 Permit. The Commission will consider the findings required for each and will make its decision, based on those findings, to either, recommend approval or recommend denial. Ordinarily, the Planning Commission is the approving body for the use permit, however, because there are land use amendments, it will be going to the City Council under the Zoning Code. All applications will then be brought to City Council for final approval or denial. Deputy Community Development Director Wisneski provided a PowerPoint presentation addressing location, background, surrounding uses, details of the application, existing conditions, ownership change in 2012, violations related to prior improvements, options considered to improve the situation, the intent of the Land Use amendment and placement of a land-use restriction at 123 Marine Avenue. In response to Secretary Koetting's inquiry, Deputy Community Development Director Wisneski reported that any type of change to the structures will require further discretionary review. She added that the existing Conditional Use Permit limits business operation to what they are, today. There is a restriction as to what they can do, but the land-use restriction provides another level of protection. She addressed the area where there is currently unpermitted development and any expansion of the area would be an alteration to the current business operations. In response to Secretary Koetting's question, Assistant City Attorney Torres reported that the land-use restriction would be recorded against the property that would prevent any type of commercial use in the area. In response to Commissioner Hillgren's question regarding the possibility of a lot-line adjustment as opposed to a merger, Deputy Community Development Director Wisneski reported that the unpermitted development attaches to the residential use, it would make the residential lot undevelopable because it would be too narrow. She added that if the lot merger were to be approved, the area could be modified to meet Building Code requirements. In reply to Commissioner Lawler's question regarding what would happen if the property is sold, Deputy Community Development Director Wisneski reiterated that if the merger is approved, the property would be one lot. In response to Commissioner Zak's question, Deputy Community Development Director Wisneski reported that each application can stand on itsr own merit. If a Conditional Use Permit were approved and the Land Use change denied, there is a condition recognizing that scenario, requiring that the unpermitted commercial development should be permitted or demolished, prior to the outdoor dining area being finalized by the City. There is a timeframe requiring its removal. Additionally, she listed next steps if the Planning Commission should recommend approval of all applications. Vice Chair Brown reiterated that the Planning Commission is not approving anything at this time, but rather recommending approval or denial to City Council. Deputy Community Development Director Wisneski addressed the proposed improvements along Marine Avenue including relocation of bike racks, outdoor dining area and access and noted that the area of the property is along the public right-of-way. She reported that Council will review the project for compliance with Council Policy L-21. She highlighted existing conditions and actions that staff has taken to monitor the operator and reported on past violations issued for the property. Additionally, Deputy Community Development Director Wisneski addressed permits currently in place that establish regulations for their business operations and Conditions of Approval that will minimize negative impacts to the neighborhood and presented recommendations. Brief discussion followed regarding lot line adjustments versus lot mergers and when the kitchen was built. In response to Secretary Koetting's question regarding liability in connection with locating seating in the right- of-way, Assistant City Attorney Torres reported that in order to go into the right-of-way, the applicant will need to enter into an encroachment agreement with the City and as part of that, they would need to indemnify the City. Page 5 of 11 32 NEWPORT BEACH PLANNING COMMISSION MINUTES 12/3/15 Discussion followed regarding past violations and related fines. Secretary Koetting opined that the penalties don't seem to be enough. Vice Chair Brown noted only one violation by the current owner relative to the improvements currently being discussed. In reply to his question as to whether the current owner was aware of the violation, Deputy Community Development Director Wisneski reported there is no previous record of the City notifying him that the improvements were unpermitted. Commissioner Hillgren asked regarding separation from the sidewalk and Deputy Community Development Director Wisneski reported there is a wrought iron fence proposed to separate the dining area from the sidewalk. She provided information regarding ADA access and reported the outdoor dining area must close at 9:00 p.m. and the tables will be brought indoors. She noted that it must also meet the standards of the noise ordinance. Discussion followed regarding the current food-to-alcohol sales ratio, leaving the selection of the location of bike racks at the discretion of the Public Works Department, whether the Balboa Island Improvement Association has weighed in on the bike racks and expectations relative to bike racks. City Traffic Engineer Brine reported that staff is looking at Balboa Island, overall, to add bike racks but the plans have not yet been finalized. Commissioner Weigand expressed concerns with rushing an item that needs proper vetting, noting that the Balboa Island Improvement Association has been considering the matter for quite some time. He added that he would like to hear what they have to say. Secretary Koetting asked whether the kitchen expansion area will be brought up to code and Deputy Community Development Director Wisneski reported that is the purpose of the land use amendment and lot merger. She added that the General Plan amendment would not require a vote of the electorate. Commissioner Hillgren asked if by merging the lots, the existing construction would be deemed compliant and Deputy Community Development Director Wisneski stated that some improvements would be required to bring the project to code, and described same. In reply to Commissioner Zak's inquiry, Deputy Community Development Director Wisneski reported that the entire process may take up to a year due to Coastal Commission review. Commissioner Zak expressed concerns regarding possible liability to the City. Assistant City Attorney Torres reported that unpermitted development happens throughout the City and that the City doesn't necessarily take on liability every time a property owner does that. In this case, there is an active Code Enforcement case against the property. Depending on the action of the Commission and Council, it would result in either removing the structure, or proceeding to make it legal. He added that he does not foresee any liability to the City. This is part of the process to bring it up to code. In answer to Commissioner Weigand's question, Assistant City Attorney Torres reported that the Planning Commission could continue this item and take the application for the lot line merger and consider the matter as one package in the future. Vice Chair Brown opened the public hearing. Dan Miller, applicant, presented his vision and reported that in the process, they are rebranding the Village Inn from a dive bar to a community dining establishment. He addressed increases in food sales, beautification, seating capacity, entertainment, and actions to resolve non-compliance issues. He addressed compliance with the City's noise ordinance, food sales and provided suggestions regarding the bike racks. Secretary Koetting referenced the floorplan and asked regarding plans to fill in gaps in the seating layout. Mr. Miller reported that in order not to add seating, they will push the two-top tables outside and bring them in Page 6 of 11 33 NEWPORT BEACH PLANNING COMMISSION MINUTES 12/3/15 during the live entertainment windows. Secretary Koetting suggested moving the live entertainment toward the back and Mr. Miller reported that after looking at several options, they determined it would have the best visibility around the fireplace, in the front. Additionally, he addressed the last call for food relative to Condition No. 18. Commissioner Weigand asked regarding outdoor dining tables and Mr. Miller reported that the tables would be brought inside during live entertainment. Patrons will be advised of the 9:00 p.m. closure of the outdoor dining area. He reported that music, generally begins at 8:00 p.m. Currently, live entertainment is on six nights per week and he acknowledged that windows will need to be closed during live entertainment. Commissioner Weigand commented on the possibility of proceeding with half of the dining area and having the applicant return for approval of the other half. Mr. Miller noted that it would increase his expenses and he would not be in support of the suggestion. Discussion followed regarding the accordion doors, noise attenuation and existing windows and structures. Deputy Community Development Director Wisneski reported that staff will review the specifications of the accordion doors and their ability to attenuate sound during the plan check process. Discussion followed regarding the current and proposed location of the stage, benefits of double-paned windows and pointing speakers toward the back. In response to Vice Chair Brown's question regarding the violation, Mr. Miller reported that he was not aware that the improvements were a violation of the City's code. Peter Bergman, 120 Marine Avenue, thanked the Commission for its interest and concerns. He stated that residents wish the Village Inn no harm but stated that noise has been a problem for the last three years. Additionally, he expressed concerns regarding the bike racks and noted that the venue is a restaurant by day, a sports bar in the afternoon, and a nightclub at night. Tina Sullivan, 121 Marine Avenue, noted that for many years, there were no problems in relation to the restaurant but that it all changed over the last three years. She reported that the new owners illegally took down a wall, doubled the size of the stage and moved it closer to nearby residences and turned the speakers toward same. She reported that this was done without the approval of the City's Planning Department. She complained of loud noise and screaming and reported that the police were not called because the owner asked residents to text him if the music was too loud. However, this and other measures, including a petition signed by neighbors, did nothing to stop the noise. Ellis Morcos, 122 Marine Avenue, stated he is not against the Village Inn, but complained of changes within the last three years. He believed they are not using the space adequately, and stated that the City has done nothing about violations of the Building Code. He spoke in opposition of merging the lot and changing the zoning adding that it will negatively impact the residential neighborhood. Commissioner Hillgren commented on the proposed restrictions and Mr. Morcos stated that the proposed patio dining is not acceptable to him or to his neighbors. Commissioner Hillgren noted that 123 Marine Avenue would remain residential. Mike Sullivan, 121 Marine Avenue, commented on the relocation of the bike racks closer to his property and complained that it will bring drunks closer to his house. He expressed concerns about unruly people and noise and spoke in opposition to the proposed outdoor dining. Kristen Turner, 306 Marine Avenue, spoke in support of the project and the operator. She reported that the venue went from a dive bar to a family dining establishment and commended Mr. Miller for the improvements made. Roger Van Pelt provided a brief history of the venue and complained of trash and dirt. Page 7 of 11 34 NEWPORT BEACH PLANNING COMMISSION MINUTES 12/3/15 Jerry Kelleher expressed concerns with relocating the bike racks and opined there ought to be a better way of mitigating a property that is not zoned. Tom O'Brien, 105 Marine Avenue, referenced the staff report in terms of the project not jeopardizing the welfare of the neighborhood. He noted that the neighborhood is heavily and adversely impacted and questioned the use of the lot to be designated as mixed use. Tom Sullivan complained of debris and reported that the operator has tormented his brother and his family with loud noise and squalor. He spoke in opposition to the project and asked members of the Commission how they would feel if the subject project were close to their homes. Suzanne Savary stated she has watched the destruction of a local area by a renegade business owner and operator. She commented on Balboa Island as a unique gem and noted that the subject business works as it currently exists, with double-paned windows and totally enclosed. She stated that they are proposing placing outdoor dining on City property and opined that this operator does not "fit" well with the neighborhood. She reported that it is dangerous and should be immediately identified for removal. She urged the Commission to protect Balboa Island and consider residents' concerns. Jay Truant spoke in support of the project and commented on actions to be taken to mitigate sound. He reported that music is acoustic and at low volume and that typically patrons are louder than the music. Darrin Grant, 123 Marine Avenue, stated that loud music or noise has never bothered him. He reported that the property looks much better than it did and spoke in support of the project. Lynn O'Brien reported that people were allowed to buy beer at 123 Marine Avenue during the most recent boat parade. She stated that abuses to the law, continue, although they may be very subtle at times. She stressed that Balboa Island is a residential community and it is not the responsibility of residents to help the operator make a profit. Discussion followed clarifying that the unit at 123 Marine Avenue has been occupied since June 2015. Brent Ogden III, provided a brief history of the site and noted that the construction material was not up to today's standards. He commented on the operator installing double-paned windows and opined that it will help mitigate noise. He spoke in support of the project noting there has been an improvement to the area that is serving to attract guests. Vice Chair Brown closed the public hearing. Deputy Community Development Director Wisneski stated that a condition could be added, identifying an area for relocating the bike racks. City Traffic Engineer Brine stated the only place that staff could see relocating the bike racks would be near the 123 Marine Avenue site. He added that the details need to be worked out. Discussion followed regarding possible alternative locations for the bike racks and precedents of similar lot mergers in the City. Commissioner Lawler indicated he would not support the outdoor dining area or relocating the bike racks. Commissioner Hillgren asked about sound studies and Deputy Community Development Director Wisneski reported that Code Enforcement staff have taken measurements in response to noise complaints. Senior Code Enforcement Officer Cassi Palmer reported that when staff has responded to noise complaints the noise has been in the form of a low acoustical sound. She added that complaints have been relative to bass sounds but that they have not violated the City's noise ordinance. Discussion followed regarding actions that could be taken to reduce noise. Page 8 of 11 55 NEWPORT BEACH PLANNING COMMISSION MINUTES 12/3/15 Deputy Community Development Director Wisneski suggested that staff could request a sound attenuation specialist review the plans and provide recommendations for locating the stage and installing sound attenuation equipment/barriers. Deputy Community Development Director Wisneski reported that the allowance of an outdoor dining area is compatible with the General Plan. She addressed Finding No. 5 and stated that staff felt that with the conditions proposed with the project, the business operation would be consistent with what currently exists. Commissioner Zak stated challenges relative to Findings No. 3 and 5 and noted that he is leaning towards not supporting the CUP, but recommending the other three items. Mr. Miller reported trying to work with neighbors and listed steps taken to reduce noise. He commented on his involvement in the community and reported having over 100 signatures from residents in the community, in support of the project and noted his intent to be a good neighbor. In response to Secretary Koetting's question, Mr. Miller reported that he is the business owner, not the property owner and stated he is open to the idea of moving the bike racks to Park Avenue. Secretary Koetting stated he has concerns with the outdoor dining and the proposed location of the stage. He suggested that they install double-paned glass above the wall. Commissioner Hillgren expressed concerns regarding the outdoor dining and feels that no public uses should be allowed on the residential lot and that the only thing that would be allowable would be the unpermitted kitchen, only if it was made compliant. He stated that more information is needed in terms of a sound study and including sound attenuation measures. Commissioner Weigand acknowledged efforts made by the operator to improve the site, but noted the need for a plan in terms of relocating the bike racks. Vice Chair Brown felt there are still too many unanswered questions and noted concerns regarding Finding No. 5. Deputy Community Development Director Wisneski suggested that if the applicant is amenable to conducting a noise study the matter could be continued. Assistant City Attorney Torres suggested continuing the matter to a date certain. Deputy Community Development Director Wisneski suggested tabling the matter to allow additional time for a noise study and reported that the matter would be re-noticed. Commissioner Weigand suggested involving the Balboa Island Improvement Association relative to the bike racks. Motion made by Commissioner Zak and seconded by Commissioner Lawler to deny the applicant's request for a CUP but recommend approval of the General Plan amendment, a Coastal Land Use Plan amendment and a Zoning Code amendment, with an added condition that 123 Marine Avenue is restricted to residential use. Commissioner Zak and Commissioner Lawler noted they cannot support the CUP at this time. Secretary Koetting stated he supports denial of the CUP. Discussion followed regarding restricting the whole lot on 123 Marine Avenue, concerns regarding tabling parts of the project, uses that would be allowed in a mixed use lot, the lot merger being the best option and issues with doing a lot line adjustment. Page 9 of 11 3o NEWPORT BEACH PLANNING COMMISSION MINUTES 12/3/15 Assistant City Attorney Torres recommended continuing the item to allow staff to speak with Building Officials about the various items and see if there is another solution. Commissioners Zak and Lawler rescinded their motion. Discussion followed regarding options for a motion. Commissioner Hillgren suggested keeping an open mind relative to the CUP, because that provides an opportunity for operational improvements which do not exist today. Members of the Commission noted challenges with Findings No. 3 and 5 with respect to the CUP. Motion made by Commissioner Zak and seconded by Commissioner Lawler to continue General Plan No. GP2015-002, Coastal Land Use Plan No. LC2015-001 and Zoning Code No. CA2015-010 amendments for the property located at 123 Marine Avenue to the Planning Commission meeting on January 21, 2016. AYES: Brown, Hillgren, Koetting, Lawler,Weigand, Zak ABSENT: Kramer Motion made by Commissioner Zak and seconded by Secretary Koetting to recommend denial of Conditional Use Permit No. UP2015-006 to establish an outdoor dining area associated with the Village Inn restaurant at 127 Marine Avenue. AYES: Koetting, Lawler,Weigand, Zak NOES: Brown, Hillgren ABSENT: Kramer VIII. STAFF AND COMMISSIONER ITEMS ITEM NO. 5 MOTION FOR RECONSIDERATION - None ITEM NO. 6 COMMUNITY DEVELOPMENT DIRECTOR'S REPORT Deputy Community Development Director Wisneski referenced the Commission's tentative agenda and items for consideration at the Commission's meeting of December 17, 2015. She added that the January 7, 2016 Planning Commission meeting has been cancelled. 1. Update on the General Plan/Local Coastal Program Implementation Committee 2. Update on City Council Items Deputy Community Development Director Wisneski reported that City Council awarded a contract for the Newport Center Villas EIR. ITEM NO. 7 ANNOUNCEMENTS ON MATTERS THAT THE PLANNING COMMISSION MEMBERS WOULD LIKE PLACED ON A FUTURE AGENDA FOR DISCUSSION, ACTION, OR REPORT A presentation on the City's Historical Signs will be presented in the future. ITEM NO. 8 REQUESTS FOR EXCUSED ABSENCES - None IX. ADJOURNMENT There being no further business to come before the Planning Commission, the meeting was adjourned at 10:10 p.m. to the Planning Commission meeting of December 17, 2015. Page 10 of 11 S NEWPORT BEACH PLANNING COMMISSION MINUTES 12/3/15 The agenda for the Planning Commission meeting was posted on Wednesday, November 25, 2015, at 1:24 p.m. in the Chambers binder, on the digital display board located inside the vestibule of the Council Chambers at 100 Civic Center Drive and on the City's website on Wednesday, November 25, 2015, at 1:20 p.m. Kory Kramer, Chair Peter Koetting, ecretary Page 11 of 11 38 Attachment No. PC 4 Director's Determination 39 V� QP �P �o CITY OF NEWPORT BEACH �`r.Opo 100 Civic Center Drive O(� Newport Beach,California 92660 949 644-3200 F}" f newportheachca.gov/communirydevelopment CqG/ROIX August 30, 2016 Carol McDermott, AICP Founder& Principal Entitlement Advisors 5000 Birch, Suite 400 East Tower Newport Beach, CA 92660 Re: Director's Determination of Nonconforming Status of Encroachment on 123 Marine Avenue- DD2016-004 Dear Ms. McDermott; The property at 123 Marine Avenue is developed with a two-story, single-family residence and is zoned Two-Unit Residential, Balboa Island (R-BI). A restaurant and second-floor residential unit is located on the adjacent property at 127 Marine Avenue which is zoned Mixed Use-Water Related (MU-W2). The properties are owned by the same entity. In fact, the current property owner states that he was required to purchase both the properties because of the encroachment. An addition to the restaurant was previously completed which encroaches onto 123 Marine, shown in Attachment A. The City is unable to locate building permits for the building addition, however, aerial photos indicate the encroachment has been in place prior to 1989. Subdivision Code Section 19.04.035 was amended in 2008 to prohibit the construction of structures across a property line. Historically, if parcels were owned by the same entity, then the exterior property lines were recognized. Today, several structures in the city straddle property lines. In 2001, building permits were issued for maintenance issues such as installing drywall, and replacing a door and lighting fixtures. The plans for the project depict the subject area extending beyond the property line which indicates the city was aware of the condition in 2001. See Attachment B. Historic building records are not always complete. For this reason, the inability to locate a building permit does not necessarily render an improvement unpermitted. The aerial photos support the property owners claim that the structure has been in existence for several decades. Because of the evidence provided in the aerial photos and the permits which were issued to maintain the area in 2001, it is the Community Development Director's determination that the subject addition was lawfully established. The restaurant addition is used for kitchen preparation and storage. As a non-residential use located on a residentially-zoned property, the use is considered nonconforming as defined in Zoning Code Section 20.38.030B, which states that the Director shall determine the nonconforming conditions of land uses. "B. Nonconforming Use.Any use determined to have been lawfully established and maintained, but that does not conform to the use regulations or required conditions for the zoning district in which it is located Community Development by reason of adoption or amendment of this Zoning Code or by reason of annexation of territory to the City,shall be deemed to be a nonconforming use." Nonconforming uses are subject to the abatement procedures detailed in Zoning Code Section 20.38.100 and shall be discontinued within one year unless an extension is granted by the Hearing Officer. Abatement extensions have been granted for as long as 10 years. It is our recommendation that the property owner apply for an extension of time as soon as possible. If the Hearing Officer grants an extension, the structure may continue in its current condition provided required life safety and structural issues can be addressed. At the end of the extension period, the portion of the non-conforming use and structure located on 123 Marine Avenue would be required to be removed, unless another extension is applied for and is granted. All decisions of the Community Development Director may be appealed to the Planning Commission pursuant to Zoning Code Chapter 20.64 (Appeals) within fourteen (14) days following the date of this decision, by any interested party. Sincerely, Kimberly Brandt, AICP Community Development Director Attachments: A. Site Plan B. 2001 Building Permit and Plans C. Zoning Code Section 20.38.100 Abatement Periods D. Aerial Photograph 42 Attachment A Site Plan 4s P A R K A V C lion 00 4 I To m BI r 1w a � .) P1 7 rf Lll CL r-: 0 M� 6 g W g4 St DESIGN Village Inn " r ❑ FLOOR PLANS Marine Ave. Balboaoa Island,CA 92628 Attachment B 2001 Building Permit and Plans 4s �wr�Qr City of Newport Beach Building Department CIP Permit No: B2001-1972 U ru[IY�iYFY - - PO Box 1768 Newport Beach,California 92658-8915- Permit Counter Tefsphone(849)044-3288 Inspection RequestsTelephone(949)644-3255 - - - -- Job Add-ess:127 MARINE AVE Floor: _ _ Suite: - Bldg:l Qesuiption of Work: REMODEL REAR ENTRYWAY/DOOR/DRYWALL - 1618-2001 - - Inspector Area: „ Legal Desc: Owner: TOLL,THRESA&GEORGE Contractorrtl �p � Architect: Address: - -1841 LERWER LN '-- - -- - - - - Address: Address: -- SANTA ANA, CA 92705 Phone: 7141731.0423 Phone: _ Phone: State Lie: ��fo f Applicant: TOLL,THRESA&GEORGE Can State Lie: _ Engineer: -Address:- 1841 LERWER LN Lie Expire: - - - Address: - - - SANTAANA, CA 92705 - - -- Bus Lie: - - -_-- -- - - _ - - - - - Phone: 7141731.0423 - - Lie Exp Dale: Phone: - State Lie: - - - - - Code Edition: 0 Workers'Compensation Insurance-- Designer: Type of Construction: Carrier: - - -- Address: Occupancy Group: - -- - -- - - -- Policy No: - Added/New sq.ft.Bldg: Expire: - Phone: Added,/New.sq.f;Garage: No of Stories: Building Setbacks Rear: I Special Conditions: No of Units: Front: I _.. . . .. ...... ... . ........ ..... ... .. . ..... . ... ._, .,._. .... .....- ... . ....... ....._... .. ... ......Lef:. ...........1.,. .... .. ... . ...... ....._ . Issued: Right: I Use Zone: RSC - - - - Receipt# - - Parking Spaces: - - FEES - Construction Valuation: $2,300.00 - _Building Permit Fee;: _ ,. $66.95 ,;. ,:. -__ - Microfilm: $1-.32- - Hazardous Mat:_ „_ Departmen(-__,;:,::: ...-... - - Plan Check Fee: $48.20 Excise Tax: $0.00 Add Fire Dep HMQ: $0.00 Plan Review Fee: §0.00 Supplemental: $0.00 Park Ded: $0.00 Other Fee: $0.00 Inspection Fee: §0.00 . .. -Investigation.Fee:.... .. ... ...$0.00. _ ... ... ..... SJH.T.rens ...... ..........§0.00: .::.:.-.. ... - - - - - - ._.....P..Ianhing.Depadmeat.- ..,..._.. ._ ........: . . .. __._.__..:___ ... Clean Up Deposit:._. _.$200.00.._ _ - San Dist:. . .$0.00 _ Counter Review -- -- ---- ---$0.00-- -- - - -- -- Energy Compliance: $0.00 - Ca Seismic Safety: $0.00 - - Zoning Plan Check: ” - $27.15 - Fair Share: - $0.00. -- - - -Disabled Review: $0.00 - - - - OverTime Plan Check Fee: -$0.00 . TOTAL FEE 343.62 TOTAL PAYMENT : 48.20 TOTAL DUE:_ 295.42 PROCESSED BY: - - -- - _ - - --- OTHER DEPARTMENT: _ ZONING APPROVAL: - - PLAN CHECK BY: -- FIRE APPROVAL:- - - ' --- APPROVAL-TO-ISSUE: - - - -'- - GRADING"APPROVAL: "" -" '" " ° '° `'-' ' - "--WORK&UST BE STARTED WITH A PERIOD 0F180.0AYS FROM-THE DATE-OF VALIDATION - ' —.- -- -- - - - - --. - - - - -_ - - -- OR THIS PERMIT BECOMES NULL AMD VOID. - - - - - - - - - - - - PUBLIC WORKS: APPROVALS DATE I BY COMMENTS OWNER-OULDER DECLARATION rl "I RAI;- ;I r AM 1-' ' FOUNDATION -5-G "; 1A, RE-I OUGH GRADE 1f � R LINE&GRADE GERT1""ETBACKS DECLARATION OF CORPLIANCE VtTN ERECTION PADS C"X.-1: �Iil AZ�OR:0I. `11-1:'� 7 4UlK:1�)'!AIL''3 A-,El",-'�'c'01'r FOO-INGS NMI: 1403 .....t�" v I SUNIATUD ASKSTOS ❑cl CTI C;� M� 0'­1 1 lz I�A,-.h� zC44 :LN .";y SLAB 0 repA IND ON GRADE ',I :I;. ;AF lill :k :K1 �A') PlF--Ii-. -.0. D Ago R T t n "Z F. IWIII.w Me. :r� V 14 p FRAMING TPA. DECK SLAB 1�1 SUBFLOOR 10 4 A;--'-vI R.� ROOF&BUILDING HT TURE: StGNA I;lfal Wi I c-Nft Aw EXT.SHEAR/HOLD DOWNS GENERAL FRAMING FIREPLACE THROAT LICENSE D CON I RAG'[ORS DECIA RA VOIN INTERIOR&EXTERIOR A TN'SULAI 70%� DRYWALL SUSPENDED CEiUNG' SHOWER LATH WORKERS'COVIREN5ATION DECLARATION EXTERIOR LATH SCRA'rcH (PLASTER)ER) (2) DAY) MASONRY PRE-GROUT- INSPE.0 I IONS: m PERMIT EXTENSION 1 ST EXP,LETTER 2ND FXP.LETTER BUILDING FINAL ---CSN#RUC-TION';FNDINB AGENCY CERTIFICATE OF OCCUPANCY TENANTNAVE 5 2w REFUNDED Y ... ........ )ATE ------------- TYPE OF BUSINESS USE TO L( _e -------------- i.._._ --- 64 ro 05 -- - --- - --- ---- ............................................. . ............. q:Hs•,wt•k .. sj= City of Newport Beach Building Department ELECTRICAL Permit No: E2001-0961 PO Box 1768/3300 Newport Blvd, Newport Beach,California 92658-8915 Permit Counter Telephone(949)644-3288 Inspection RequestsTelephone(949)644-3255 Job Address:$27 MARINE AVE Bldg:1 Floor: Suite: Description of Work: REMODEL REAR ENTRYWAYIDOOR/DRYWAL 62001-1972 71.9 • Inspector Area: �, Code Edit:96 Legal Desc.: Cs0 INSPECTOR NOTES: r Owner: TOLL,THRESA&GEORGE Contractor: Address: 1841 LERWER LN Address: SANTA ANA, CA 92705 Phone: 714/731-0423 Phone: Con.State Lic. Receipt#: Lic Expire: Bus.Lic.: Processed By: Lic.Exp Date: IT FEE New Construction Receptacle/Switch/Outlets Maters/rransforrners(HP/KVA) Temp Power Pole 0 $0.00 Residential Recep/Outlets 0 $0.00 0 to 1 HPIKW/KVA 0 $0.00 Temp Underground 0 $0.00 Multi-Family 0 $0.00 Fixtures 1 $0.93 1 to 10 HP/KW/KVA 0 $0.00 Sub Panel 0 $0.00 1-2 Family 0 $0.00 Sep Circuit 0 $0.00 10 to 50 HP/KW/KVA 0 $0.00 0 $0.00 - 50 to 100 HP/KW/KVA 0 $0.00 0 $0.00 Service Signs - over 100 HP/Kwi 0 $0.00 - Record Managmem Fee: $0.27 0 to 600V up to 200A 0 $0.00 Branch Circuit 0 $0.00 Investigation Fee $0.00 0 to 600V over 200A 0 $0.00 each Add Circuit 0 $0.00 Piggy Back/Temp Power 0 $0.00 Plan Check $0.23 Over 600A/1,000A 0 $0.00 Time Clocks 0 $0.00 Issuance $19.70 Supplemental Fee $0.00 TOTAL: $21.13 PAYMENT: $0.23 BALANCE:$20.90 LICENSED CONTRACTORS DECLARATION _I hereby affirm under penalty of petjury that I am licensed under provisions of Chapter 9(commenong with Section 7000)of Division 3 of the Business and Professions code, Approvals Inspector/Date and my license is in fullfarce and effect. Dcense No: Class: Contractor: - Grounding Electrode -' WORKERSCOMPENSATION DECLARATION I hereby affirm under penalty of perjury one of the following declarations: Underground I have and will maintain a certificate of consent to self-insure for workers'compensation,as provided for by Section 3700 a the labor code,fi i the performance of the wok for which this pei is Issued. UnderslablFloor I have and will Pill workerscompensation insurance,as recalled by section 3700 of the labor code,for the performance of the work for which this permill is issued. _ My workers'compensation insurance tamer and policy numbers is: Rough Conduit Walls - Camter. Policy number. Expire: - - -- This section need not be completed if the permit is for one hundred dollars($100)or less. Rough Wiring Ceilings I cedify that in the performance of the work for wh,ch thio pe•mil it issued,I shall not employ any person in any manner so as to become subject to the workers'wmpensabon laws Rough Service of California,and agree that if I should^emme sr]jet:'-j tt._.v rke5 compensation provisions of Section 3700 of the labor code,I shall fdMwith comply With Mose provisions. Temp Power - OaM:__-, „ Applicant Signature: warning:Failure to secure workers'compensation coverage is unlawful,and shall subject an employer to criminal penalties and chAl fines up to one hundred . . . . .. .. Utility Co.Notified ($TD0,000J,in additio.i to the cost of comrrensabon,dani as oruldei fol,in Se-.tion 3706 of the labor code,interest,and attorneys fees. Final' I hereby acknowfedue trial I haw read tni=ap,is tion;thal'he 6foi in c" i,mmee:and that I am the owner,or duly authorized agent of the owner.1 agree to comply with cly and sate Ir yr ragula"r3 mnstfiction; a in do::fig the work authorized(hereby,no person We be employed in violation of the labor code of the state of California relating to workmen's/m^�nsahon insurance. Permittee Name(Pri t1f )_,C OfZ�[�_T� \ .��\ Address : _ WORK MUST BE STARTED WITHIN A PERIOD OF 180 9 p �� � I -7 DAYS FROM THE DATE OF VALIDATION OR THIS Signature Of ermitte .. �Q t'J D � "X)I 0 I, PERMIT BECOMES NULL AND� ./' CrC �g L .. _ ._ _ .. .. __ • . . _ .. .. _. ... .. .- .. I I Evn9m, - = -- - - - - - - I I I 1 , 1 NOTICE R � eRAcl9 m '2• RHQUJRRSSM'MOSSRRVBOF COVENA LEGAL UfkACANT MAS Bonfago RETMIC170NS WIIT CH . . - 11 e /y� "CORDED AGAINST -3 - r9��0.<2 wook. GCO•! 1- , 0.� �-`_py`.^��� � �j�KX .. � 1 rI�]700i rItOPRIETY 0'W OBTAIN COMMUNITY 1 �� PLAN&YOU COMPACT YOUR COMMUNITY RW _ D A1TTD0 RIzEC DEB • I � ((ff-� fie: • ' r � i - -_ - -. ' - -- .. . . [� b `C'.s��o.ce . �.g�' '_��nv:{r�, _ ,_"(r. ina�,J•.�� _''TIX�'vf,2, -. - -. • I _ CRYOFNEWPORT BEACH - ENCROACHMENT PERMIT SHALLBEOBTAINED _ FORALL WORK WRHMWW EASEMENTS&RIGHTS OFµl-' VILLAGE INN R S=>DENC E - _ _ _ OWL0216OLPAKIADI, _ _ 1_.: - - _ _ CITY OFNINIFORTOEACH.CA _ - 11ICC RR1g��Y7Y7,,UUOF TME![iUtt OOE{NOT COISIRUTF F1tRES30R WiUEC TwFRIalILiIREOIDPCF0.7U{{AR COUF011CQ{OE txFCf�I1'M{UEFORI - TEST TN/M/{Og100E{{01O MOPOUCIESONIKE RrTOFI PORT 127 M 1RINE AVE. 125 MARIAE ,AVE• , _ _ _ tT MCORipITORE flII.Bt40iM.St UTURFOR ORIMPOOK WE P TRIST PWF.BUM.MING OR AFTER C04TRIC BALBOA AVE. LdpQ �` Pio L,w� VILLAGE INN R-, .SIDENCE.- US Am TOCOYDIT RIIRTREO `MAIMP AID aTRECrmatnroar/FECR C -- 7, - - AFFuwntwq>RE{oD1ERr: . Ita+rn N W RT S - B„Q�rt iF P_0 EACH - _ - - - --FW - ITRAFFIC -- V r- 6• - ALLEYWAY t- / pn�«�. ptah Q � --r PLAN ELE VA-T 10 ISI OV D00 R REPL NOC EMENT AJ FtLarr._.�Fcoc'...=T'I�._.p.revlou� cFopr: is. _ . ' �'�,•.,,Ia-� -�� Lt ,t�q.�e�s=-� _ TIDE ViL1:.AGI�. IN�4 - - - - - - - JUTIE Z5, Z OI �9 Attachment C Zoning Code Section 20.38.100 Abatement Periods 50 20.38.100 Abatement Periods. --;HARE ii...I A. Nonconforming uses shall be abated and terminated upon the expiration of the periods of time identified in this section. B. All Zoning Districts When No Structure Is Involved. Nonconforming uses of land located in any zoning district, Planned Community District, or specific plan district that do not involve the use of a structure shall be discontinued within one year of becoming nonconforming. C. Residential Zoning Districts Involving a Structure. In residential zoning districts or in an area where residential uses are allowed in Planned Community Districts or specific plan districts, a nonconforming use of land involving a structure shall be discontinued as follows: 1. Abatement Period.A nonconforming use of land involving a structure in a residential zoning district shall be discontinued on the earliest date as follows: a. Within one year; or b. Upon the expiration of the term of a lease on the property.Any lease shall be the last lease entered into for the subject property prior to December 7, 2007; or c. Upon the expiration of a current operating license that is required by State law. 2. Order of Abatement.Whenever the Director finds that any of the conditions exist that are identified in subsection (C)(1)of this section, the Director shall issue a written order of abatement to the property owners and all persons in possession of the property. The owner and/or person in possession shall comply within the time and in the manner stated in the order. 3. Exception. Multifamily and two-family residential uses located in residential zoning districts and in areas where residential uses are allowed in Planned Community Districts or specific plan districts that are nonconforming only in terms of their number of units or parking shall not be subject to abatement. 4. Extension of Abatement Period. Following the issuance of an abatement order by the Director, a property owner may request an extension of the abatement period in order to amortize the property owner's investment and to avoid a potential taking of property either under the procedure outlined in this subsection or under the procedure outlined in subsection(C)(5)of this section (Extension of Abatement Period for Residential Care Facility). JZ a. Application Requirements.An application for an extension of the abatement period shall be filed with the Department no later than ninety(90)days prior to the expiration of the abatement period as specified in this section.The application shall include the following information in addition to other information required by the Department: i. The length of the requested extension of the abatement period; and ii. Evidence in support of the findings included in subsection (C)(4)(c)of this section (Findings and Considerations). b. Hearing Officer Hearing and Action. i. The Hearing Officer, as provided in Section 20.60.040 (Hearing Officer), shall be the review authority for applications for requests of extensions to abatement periods for nonconforming uses in residential zoning districts and in Planned Community Districts or specific plan districts where residential uses are allowed. ii. The Hearing Officer shall conduct a public hearing on the request in compliance with Chapter 20.62 (Public Hearings). iii. The Hearing Officer, by resolution, shall approve, conditionally approve,or deny the request for an extension to the abatement period.The resolution shall include:findings of fact; evidence presented of economic hardship arising from the abatement proceedings;the nonconformity's impact on the community; and other factors that may affect the length of the abatement period required to avoid an unconstitutional taking. c. Findings and Considerations. In reviewing an application for an extension to the abatement period the Hearing Officer shall consider the following: i. Length of the abatement period in relation to the owners investment in the use; ii. Length of time the use was operating prior to the date of nonconformity; iii. Suitability of the structure for an alternative use; iv. Harm to the public if the use remains beyond the abatement period; and v. Cost and feasibility of relocating the use to another site. 52 d. Notice to Owner. Following the hearing,the Department shall send a copy of the Hearing Officer's action to the owner of the property within ten (10)days following the date of the Commission's action. e. Appeals. Refer to subsection (F)of this section. 5. Extension of Abatement Period for Residential Care Facility. The abatement period for a residential care facility may be extended upon approval of an application by the Director under one or both of the circumstances outlined below.An application for an extension under this subsection is separate and apart from an application for an extension under subsection (C)(4)of this section.A residential care facility may apply for an extension under either or both procedures: a. When the owner or occupant has applied for a conditional use permit(Section 20.52.020)or reasonable accommodation (Section 20.52.070) in a timely manner and is diligently pursuing the applicable process, as determined by the Director; or b. When the business owner or occupant is contractually obligated to continue the provision of a program or service for one or more persons so long as any existing contract provides for a normal and customary term for the provision of those services. No term shall exceed sixty(60)days. D. Nonresidential Zoning Districts Involving a Structure. 1. Abatement Period. In nonresidential zoning districts, and in areas where residential uses are not allowed in Planned Community Districts or specific plan districts, a nonconforming use of land involving a structure shall be discontinued within ten (10)years after the Commission determines that the orderly termination of the nonconforming use is necessary to promote the health, safety, and general welfare and to comply with the provisions of the Zoning Code and goals and policies of the General Plan. 2. Order of Abatement.Whenever the Commission determines that the abatement of a nonconforming use is necessary in compliance with subsection (D)(1)of this section, the Director shall issue a written order of abatement to the property owners and all persons in possession of the property. The owners and/or persons in possession shall comply within the time and in the manner stated in the order. 3. Exceptions. The abatement period specified in subsection (D)(2)of this section shall not apply except in the following circumstances: 53 a. A different abatement period is specified in a Planned Community District or specific plan district; or b. The use is located in a landmark structure that is subject to the provisions of Section 20.38.070 (Landmark Structures), in which case there shall be no abatement period. 4. Extension of Abatement Period. Following the issuance of an abatement order by the Director, a property owner may request an extension of the abatement period in order to amortize the property owner's investment and to avoid a potential taking of property. a. Application Requirements. An application for an extension of the abatement period shall be filed with the Department no later than ninety(90)days prior to the expiration of the abatement period as specified in this section. The application shall include the following information in addition to other information required by the Department: i. The length of the requested extension of the abatement period; and ii. Evidence in support of the findings included in subsection (D)(4)(c)of this section (Findings and Considerations). b. Commission Hearing and Action. i. The Commission shall be the review authority for applications for requests of extensions to abatement periods for nonconforming uses in nonresidential zoning districts and in Planned Community Districts or specific plan districts where residential uses are not allowed. ii. The Commission shall conduct a public hearing in compliance with Chapter 20_62(Public Hearings). iii. The Commission shall evaluate evidence presented of economic hardship arising from the abatement proceedings, the nonconformity's impact on the community, and other factors provided in subsection (D)(4)(c)of this section that may affect the length of the abatement period required to avoid an unconstitutional taking. iv. The Commission shall approve, conditionally approve, or deny the request for an extension to the abatement period only as required to avoid an unconstitutional taking of property. 54 c. Findings and Considerations. In reviewing an application for an extension to the abatement period the Commission shall consider the following: i. Length of the abatement period in relation to the owner's investment in the use; ii. Length of time the use was operating prior to the date of nonconformity; iii. Suitability of the structure for an alternative use; iv. Harm to the public if the use remains beyond the abatement period; v. Cost and feasibility of relocating the use to another site; and vi. Other evidence relevant to the determination of whether an extension of the abatement period is required to avoid an unconstitutional taking of property. d. Notice to Owner. Following the hearing,the Department shall send a copy of the Commission's action to the owner of the property within ten (10)days following the date of the Commission's action. E. Enforcement.The City shall enforce the provisions of this chapter by civil action, utilization of the procedures in Chapter 20.68 (Enforcement), or any other proceedings or methods permitted by law. F. Appeals. 1. Decisions of the Director, Zoning Administrator, Hearing Officer, or Commission maybe appealed in compliance with the procedures established in Chapter 20_64 (Appeals). 2. Council hearings on appeals of the Hearing Officer's decision shall not be de novo and the City Council shall determine whether the findings made by the Hearing Officer are supported by substantial evidence presented during the evidentiary hearing. The City Council, acting as the appellate body, may sustain, reverse, or modify the decision of the Hearing Officer or remand the matter for further consideration.The remand shall include specific issues to be considered or a direction for a de novo hearing. (Ord. 2010-21 § 1 (Exh.A)(part),2010) 5155 Attachment D Aerial Photographs 50 A �t M • 1 ir�� 71 121 1/2 ; Year 2014 I � ' i T a 1 riw M N T x= r 121 1/2 Year 2001 4w • [ lr }► Year 1989 �g Attachment PC 5 Acoustical Evaluation, KFEB Acoustics, March 20, 2016 59 V� QP �P �o PA2015-016 09-01-16 Submittal KFEB Acoustics The Village Inn Restaurant Attn: Daniel Miller 127 Marine Avenue Newport Beach, California 92662 Subject: Acoustical Evaluation and Design Recommendations The Village Inn— Newport Beach, California Date: March 20, 2016 Dear Mr. Miller: Contact: At your request, KFEB Acoustics has prepared this letter report discussing the Kevin Fowler acoustical evaluation of The Village Inn Restaurant located in Newport Beach, California.The objective of this acoustical analysis is to evaluate the restaurant live Phone: performance operations and provide mitigation designs to comply with the City of 760-331-3880 Newport Beach's noise regulations. email; kevinafowler@yahoo.com Introduction Our ret The Village Inn Restaurant is located at 127 Marine Avenue, in the City of Newport VI-0002 Beach, California. The project site is zoned Mixed-Use Water Related and is adjacent to other mixed use, commercial and residential land uses. The adjoining parcel at 123 Marine Avenue is also under the same ownership and included in the current applications on file with the City. Therefore,the southern property line which is referenced throughout this report is the southern property line of both parcels. The Village Inn Restaurant is currently operating with indoor seating. The restaurant contains a musical performance stage located indoors and adjacent to the eastern wall. The restaurant utilizes the stage for live performances and amplified music. The live performances occur from 7:00 p.m. to 10:00 p.m. on Tuesdays and Sundays and from 7:00 p.m. to 11:30 p.m. on Wednesdays through Saturdays. When the live performances are scheduled to begin, restaurant staff ensure that all of the windows and doors are closed. 01 PA2015-016 N-01-16 Submittal The Village Inn Restaurant Acoustical Evaluation March 20, 2016 The Village Inn Restaurant is proposing an outdoor dining area along the eastern building fagade adjacent to Marine Avenue to accommodate seating for 16 patrons; it is proposed to open at 7:00 a.m. and close prior to the time live entertainment begins. The windows and doors will remain closed during the live performances. Operators of The Village Inn have installed an acoustical hood around the rooftop outdoor vent as well as purchased acoustical absorption panels that are planned to be installed within the restaurant. Regulatory Noise Code The Village Inn Restaurant is located within the City of Newport Beach jurisdiction, which has established noise regulations. The Village Inn Restaurant is zoned Mixed- Use Water Related and is adjacent to a mixed-use area and residential land uses. The Newport Beach noise regulations limit noise impacts at residential land uses to 55 dBA Leq during the daytime period (7:00 a.m. to 10:00 p.m.)and 50 dBA Leq during the nighttime period (10:00 p.m. to 7:00 a.m.). (For more information, please refer to Attachment 1: Relevant Excerpts from the City of Newport Beach Noise Ordinance.) The Permit to Conduct Live Entertainment for The Village Inn states that "Noise levels from live entertainment shall be controlled so as not to exceed 60 dB(A) on the public sidewalk adjacent to the exterior doors and up to 50 d(B)A at the centerline of the public alley between the Village Inn and 1305 Park Avenue while the doors are closed. Noise spikes up to 80 d(B)A on the public sidewalk adjacent to the exterior doors and up to 70 d(B)A at the centerline of the public alley between the Village Inn and 1305 Park Avenue are permitted during patron ingress and egress." Noise Methodology and Procedures Field Noise Measurement Methodology On Tuesday, February 16th, 2016 sound level measurements (dBA Leq, A-weighted) were conducted to document the live performance operations from 7:00 p.m. to 10:00 p.m. Prior to the start of the live performance, 15 minute baseline community ambient noise measurements were conducted at the eastern property line, southern property line and at the western property line. Once the live performance started noise measurements were conducted at these same pre-defined locations as well as at receptor locations across from Marine Avenue and at two residential locations south of The Village Inn Restaurant. Page: 2/10 PA2015-016 N-01-16 Submittal The Village Inn Restaurant Acoustical Evaluation March 20, 2016 A single sound level meter was deployed within the enclosed southern portion of the restaurant to document the interior noise levels during the live performances. The interior noise measurements were conduct simultaneously with the exterior measurements of the ambient environment and live performance. All noise measurements were collected in full 1/3 frequency octave band spectrum. Each measurement was recorded for a full continuous 15-minute time period. During the on-site noise measurements, start and end times were recorded, along with any other significant community noise sources in the area. Noise Measurement Equipment The following equipment was used at the project site to measure existing noise levels: • Larson Davis Model 824 Sound Level Meter • Larson Davis Model 831 Sound Level Meter • Larson Davis Model CA200 Calibrator • Hand-held magnetic compass, microphone with windscreen,tripods • Distance measurement wheel, digital camera Each sound level meter was field-calibrated prior to and following the noise measurement to ensure accuracy. All sound level measurements conducted and presented in this report are made with a sound level meter that conforms to the American National Standards Institute (ANSI) specifications for sound level meters (ANSI SI.4-1983 [R20011). All instruments are maintained with National Bureau of Standards traceable calibrations, per the manufacturers' standards. Exterior Noise Modeling Software Modeling of The Village Inn Restaurant and surrounding environment was accomplished using CadnaA(Computer Aided Noise Abatement), which is a model- based computer program developed by DataKustik for predicting noise impacts under a wide variety of conditions. CadnaA assists in the calculation, presentation, assessment, and mitigation of all types of noise exposure conditions. It allows for the input of project information such as noise source data, sound barriers, sound enclosures, intervening structures, and project elevations to create a detailed CAD model, and uses the most up-to-date calculation standards to predict outdoor noise Page: 3/10 PA2015-016 N-01-16 Submittal The Village Inn Restaurant Acoustical Evaluation March 20, 2016 impacts for evaluating compliance regulations at property lines and other adjacent land use areas. Existing Ambient Noise Measurements On Tuesday, February 16, 2016 community ambient baseline noise level measurements were conducted to document the existing noise environment within the vicinity of The Village Inn Restaurant. During these measurements, the restaurant was operating under normal dining conditions with no amplified music. The measurements were conducted between 6:00 p.m. to 7:30 p.m. prior to the start of the live performance. During these measurements the windows of the restaurant were closed. Table 1 summarizes the measured ambient noise measurements. Noise level measurement locations are illustrated in Figure 1 Table 1. Field Measurements of the Existing Noise Levels in the Vicinity of the Village Inn Restaurant Noise Measurement Location Measured Noise Level Measurement Description (d BA L,J Location Interior Interior Southern Portion of 72.5 the restaurant 1 Southern Property Line 58.0 2 Western Property Line 56.0 3 Eastern Property Line 58.6 During the ambient noise measurements it was noted that the existing noise environment nearby the restaurant consisted of localized vehicle traffic on Park Avenue and Forest Boulevard as well as noise from pedestrians walking within the neighborhood. Aircraft overflight was also noted as a noise source in the vicinity of the restaurant. Live Performance Noise Measurements Upon completion of documenting the existing community ambient noise measurements on Tuesday, February 16, 2016, the live performance started at approximately 7:40 p.m. During the noise measurements of the live performance the restaurant windows and doors remained closed once the entertainment began. Noise Page: 4/10 PA2015-016 N-01-16 Submittal The Village Inn Restaurant Acoustical Evaluation March 20, 2016 level measurements were conducted at 6 separate locations for 10 to 15 minute continuous time durations. Table 2 summarizes the noise level measurements of the live performance. Noise level measurement locations are illustrated in Figure 1. Table 2. Field Measurements of The Village Inn Restaurant Live Performance Operations. Noise Interior' Exterior Measurement Measurement Location Measurement Measured Measured Location Description Period Noise Level Noise Level (dBA Leq) (dBA Lay) 1 Southern Property Line 19:40— 19:55 85.0 58.5 2 Western Property Line 19:58—20:13 86.8 56.9 3 Eastern Property Line 20:17—20:32 87.7 58.0 4 Across Marine Avenue 20:34—20:49 88.1 56.9 Across Marine Avenue 5 20:51 —21:04 88.4 55.5 South of the Restaurant 6 115 feet South of the Restaurant 21:06—21:14 88.9 54.8 1 Southern Property Line 21:16—21:28 89.7 55.8 2 Western Property Line 21:31 —21:46 88.7 56.4 'Noise levels measurements made within the interior of the restaurant adjacent to the southern wall. It should be noted that the exterior noise levels decreased as the nighttime period became later. This is primarily due to the decrease in traffic noise along Marine Avenue and Park Avenue. The measurements showed that at locations 1 and 2 the live performance at The Village Inn Restaurant became the primary noise source. The on-site field acoustical field technician noted that as the measurements moved farther away(Locations 5 and 6)the noise from the live performance because less audible where community noise became the primary noise source. Based on the noise level measurements presented in Table 2, it was determined that the noise levels contribution at the adjacent property lines (Measurement Locations 1 through 4)from the live performances is approximately 55 dBA. Based on this determination the noise levels generated by the existing live performance operations are shown to be at or below the Newport Beach daytime noise threshold limit of 55 dBA Leq, but will exceed the nighttime noise threshold limit of 50 dBA Leq. The nighttime exceedance would only occur if the live performances operate past 10:00 Page: 5/10 PA2015-016 N-01-16 Submittal The Village Inn Restaurant Acoustical Evaluation March 20, 2016 p.m. Also, it should be noted that the existing operations comply with the 60 dBA required by the Permit to Conduct Live Entertainment. Noise Model Calibration Information collected from the site visit, along with restaurant plans, were used to create a virtual, three-dimensional model of The Village Inn Restaurant using the Cadna A noise modeling software. Virtual sound sources used were characterized in terms of location, acoustic directivity and power capabilities to properly represent the live performance operation. Based on the noise level measurements collected on Tuesday, February 16t^, 2016, it was determined that the noise levels contribution at the adjacent property lines (Measurement Locations 1 through 4)from the live performances is approximately 55 dBA. Therefore, the model was calibrated based on the 55 dBA noise level associated with Measurement Locations 1 through 4. The computer model yielded noise level predictions that are very comparable with those measured during the site visit. The computer model demonstrated acoustic properties that closely emulate the actual environment. Within the model there were several identified discrepancies that may be due to a number of factors which include: variations in the quality of construction, deviations in the absorption coefficients assigned from actual absorption properties of surfaces, and low- frequency limitations of geometric acoustic prediction techniques. Table 3 compares the outdoor measurement noise levels to the calculated noise model levels. For a graphical representation of the existing restaurant noise levels please refer to Figure 2: Existing Noise Levels. Table 3. The Village Inn Restaurant Noise Model Calibration Results Live Calculated Noise Performance Measurement Location Noise Difference Measurement Description Noise Level (d B) Location Contribution (dBA Leq) (dBA Leq) 1 Southern Property Line 55.0 56.8 1.8 2 Western Property Line 55.0 53.6 1.4 3 Eastern Property Line 55.0 55.0 0.0 Page: 6/10 PA2015-016 N-01-16 Submittal The Village Inn Restaurant Acoustical Evaluation March 20, 2016 Live Calculated Noise Performance Measurement Location Noise Difference Measurement Description Noise Level (d B) Location Contribution (dBA Ley) (dBA L•q) 4 Across Marine Avenue 55.0 53.4 1.6 Acoustical Evaluation of the Proposed Village Inn Modifications with Noise Reduction Measures The Village Inn Restaurant is proposing upgrade modifications incorporating noise reduction measures to the existing building. The proposed modifications are bulleted below. Figure 3 illustrates the proposed upgrade modifications. • A new patio area located on the eastern side of the restaurant. The new patio area shall incorporate outdoor seating for a total of 16 patrons. • The eastern wall will be replaced with a folding wall/window system that will open up to the new patio area. The folding wall will be closed and completely sealed during live performance operations. • The window heights of the folding wall will be extended from the ceiling to the floor on the eastern side of the building. • The existing windows will be upgraded to a dual pane window system, which will provide an STC rating of 34 (see Attachment 2). • The southern door will be replaced with a new insulated metal door. • All entrance doors will also include all-around weather-tight door stop seals and an improved threshold closure system. The transmission loss (TL)of the doors without weather-tight seals is determined mostly by sound leakage, particularly at the bottom of the door if excessive clearance is allowed for air transfer. By equipping the entrance doors with all-around weather-tight seals and a threshold closure at the bottom, the STC rating can be increased by approximately 10 points. • New 9 foot high storage will be built as an extension of the southern portion of the restaurant. With the incorporation of the proposed upgrade modifications and noise reduction measures, as described above, the noise impacts to the adjacent residential property lines will be below the 50 dBA nighttime property line noise threshold limit. Table 4 summarizes the noise levels from the Village Inn Restaurant during live performance operations incorporating the proposed upgrade modifications and noise reduction Page: 7/10 PA2015-016 N-01-16 Submittal The Village Inn Restaurant Acoustical Evaluation March 20, 2016 measures. For a graphical representation of the recommended mitigation designs and results please refer to Figure 4: Upgrade Modification Noise Impacts. Table 4. Upgrades Modification Calculated Noise Level Impacts Noise Measurement Location Threshold Calculated Measurement Description Limit (dBA) Noise Level Location (dBA) 1 Southern Property Line 50 47.7 2 Western Property Line 50 32.5 3 Eastern Property Line 50 46.0 4 Across Marine Avenue 50 44.0 Alley between the Village 5 Inn and 1305 Park Avenue 50 26.0 1 The eastern folding wall as well as the all doors and windows are closed and sealed. Table 4 illustrates that with the proposed modification upgrades and noise reduction measures the Village Inn Restaurant live performance operations will comply with the City of Newport Beach's nighttime noise threshold limit of 50 dBA. However, to maximize the effectiveness of the noise reduction measures the following is recommended: • Complete the installation of the interior acoustical absorption panels. This will help reduce the reflect noise within the restaurant. By controlling the reflective sound within the restaurant the interior noise levels can be reduced by 1 to 2 dB. • Ensure that the folding wall seals are maintained in good condition. The seals should be replaced if any damage occurs. • Ensure that the top and bottom of the folding wall is completely sealed. • It is further recommended that all entrance doors maintain air tight seals using the industry standard Pemko (www.pemko.com)door stop seals and threshold system products (see Attachment 3). • Ensure that the door and window wall seals and thresholds are maintained in good condition. The seals and/or thresholds should be replaced if any damage occurs. Page: 8/10 �g PA2015-016 N-01-16 Submittal The Village Inn Restaurant Acoustical Evaluation March 20, 2016 Certification This document was prepared by Kevin Fowler, INCE. The findings and recommendations of this report are based on the information available, and are a true and factual analysis of the acoustical issues associated with The Village Inn Restaurant, Newport Beach, California. All findings for noise control are based on the best information available at the time our consulting services are provided. However, as there are many factors involved and KFEB Acoustics has no control over the construction, workmanship or materials, and KFEB Acoustics are specifically not liable for final results of any recommendations or implementation of the recommendations. KFEB Acoustics appreciate this opportunity to provide consulting services for The Village Inn Restaurant. If you have any questions concerning this project, or would like to discuss other acoustical concerns, please contact me at(760)331-3880. Sincerely, Kevin Fowler, INCE Senior Acoustical Scientist Page: 9/10 �9 PA2015-016 09-01-16 Submittal The Village Inn Restaurant Acoustical Evaluation March 20, 2016 Figures 1. Noise Measurement Locations 2. Existing Noise Impacts 3. Proposed Project Upgrade Modification 4. Upgraded Modification Noise Impacts Attachments 1. Relevant Excerpts from the City of Newport Beach Noise Ordinance 2. Proposed Window Sound Transmission Data 3. Door Stop Seals and Threshold System Products Page: 10/10 70 PA2015-016 09-01-16 Submittal Figures 72 PA2015-016 09-01-16 Submittal Attachment 1 Relevant Excerpts from the City of Newport Beach Noise Ordinance 72 P�2.'SJ1F 09-01-16&bm,U Legend ._. The Village Inn Restaurant Interior Noise Measurment &,Maw - 4 0 Exterior Noise Measurment Ir 01 1960&� •. . 2 1 3 Lot 1 �� � VIII .,IZ •� j A The Village Inn Restaurant Noise Measurement Locations Figure 1 PA2015-016 09-01-16 Submittal >s Noise Contour Legend 4o dBA Pr"'►' 45 dBA - 1 t - — F 5o dBA _ 55 dBA 6o dBA •ti. A ` i �µi _— Ile . ,� 65 dBA irKL vi It i ~` ' ;e - - now - Pft 1 . r AI qMW f , The Village Inn Restaurant E� ♦ ' ' - Existing Noise Impacts � I Figure 2 PA2015-016 09-01-16 Submittal .�N r _ _ n o °❑ o d 111 IN 1111111111 1HHH � I ppIIII -I. EAST ELEVATION N/ NEW OPEN 5FAGE PAQiG AV. d' ".".�•.•` n� ❑ 15.00' ty III LJ 01 E VILLAG' INN ry t� 0I RE5TAU.RANT d a r, N LJ _ �i Y The Village Inn Restaurant ❑ .4 rw �y O I �eJ S 6 \EN 91GE GiG'K r O (E) RESIDENCE 4 \ N 5 0 1"All A AN7 OP_NSPAI m � 7 G y E'JV� \ Proposed Project Upgrade — .� Modifications SITE PLAN Figure 3 SLALE.3/I6'+Pq' PA2015-016 09-01-16 Submittal Noise Contour Legend 4o dBA 45 dBA 5o dBA y 55 dBA n . 6o dBA 65 dBA a r- P 1 I� a ; " 10 PW — Proposed ' Storage Building I e —,r ■ 2 1 10 r The Village Inn Restaurant Upgraded Modocation Noise 1 Impacts .i ' Pft Figure 4 PA2015-016 N-g4KI19f 10 (120 hits) Chapter 10.26 COMMUNITY NOISE CONTROL Sections: 10.26.005 Declaration of Policy. 10.26.010 Definitions. 10.26.015 Decibel Measurement Criteria. 10.26.020 Designated Noise Zones. 10.26.025 Exterior Noise Standards. 10.26.030 Interior Noise Standards. 10.26.035 Exemptions. 10.26.040 Schools, Day Care Centers, Churches, Libraries, Museums, Health Care Institutions— Special Provisions. 10.26.045 Heating, Venting and Air Conditioning—Special Provisions. 10.26.050 Sound-Amplifying Equipment. 10.26.055 Noise Level Measurement. 10.26.065 Proposed Developments. 10.26.070 Prima Facie Violation. 10.26.075 Violations. 10.26.080 Violations—Additional Remedies—Injunctions. 10.26.085 City Manager Waiver. 10.26.090 Noise Abatement Programs. 10.26.095 Manner of Enforcement. 10.26.100 Severability. 10.26.005 Declaration of Policy. ................................................................................................................................................................................................................................................................................................ A. In order to control unnecessary, excessive and annoying noise in the City of Newport Beach, it is declared to be the policy of the City to prohibit such noise generated from or by all sources as specified in this chapter. B. It is determined that certain noise levels are detrimental to the public health,welfare and safety and contrary to public interest,therefore, the City Council of the City of Newport Beach does ordain and declare that creating, maintaining, causing or allowing to be created, caused or maintained,any noise in a manner prohibited by, or not in conformity with, the provisions of this chapter, is a public nuisance and may be punished as a public nuisance. The ordinance codified in this chapter is effective thirty(30)days from adoption, however, all fixed noise sources existing at the date of adoption shall have ninety(90)days from the date of adoption to achieve compliance with this chapter. (Ord. 95-38§ 11 (part), 1995) 10.26.010 Definitions. ................................................................................................................................................................................................................................................................................................ The following words, phrases and terms as used in this chapter shall have the meanings as indicated here: 77 http://www.codepublishing.com/dtSearch/dtisapi6.dll?cmd=getdoc&Docld=99&Index=D... 6/10/2013 PA2015-016 N-P14MARf 10 10.26.015 Decibel Measurement Criteria. ...............-...............................................-.............................................................................................................................................................................................................................. Any decibel measurement made pursuant to the provisions of this chapter shall be based on a reference sound pressure of twenty(20) micropascals as measured with a sound level meter using the A-weighted network(scale)at slow response. (Ord. 95-38§ 11 (part), 1995) 10.26.020 Designated Noise Zones. The properties hereinafter described assigned to the following noise zones: Noise Zone I — All single-, two-and 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. The actual use of the property shall be the determining factor in establishing whether a property is in Noise Zone I, II, III or IV provided that the actual use is a legal use in the City of Newport Beach. (Ord. 95-38§ 11 (part), 1995) 10.26.025 Exterior Noise Standards. 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 TYPE OF LAND Leq) ZONE USE 7 a.m. to 10 p.m. 10 p.m. to 7 a.m. I Single-,two-or 55 DBA 50 DBA multiple-family residential II Commercial 65 DBA 60 DBA III Residential 60 DBA 50 DBA portions of mixed-use properties IV Industrial or 70 DBA 70 DBA manufacturing 72 http://www.codepublishing.com/dtSearch/dtisapi6.dll?cmd=getdoc&Docld=99&Index=D... 6/10/2013 PA2015-016 N_P14 i1gf 10 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 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; 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-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 commercial property. 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) 10.26.030 Interior Noise Standards. ... ... ..... ... .... .. .. .............. .... ... .... .. .. ._ ............... ..._........... ............... .................. ...............-................. A. The following noise standard, unless otherwise specifically indicated, shall apply to all residential property within all noise zones: ALLOWABLE INTERIOR NOISE LEVEL (Equivalent Noise Level, NOISE TYPE OF LAND Leq) ZONE USE 7 a.m. to 10 p.m. 10 p.m. to 7 a.m. I Residential 45 DBA 40 DBA III Residential 45 DBA 40 DBA portions of mixed-use properties If the ambient noise level exceeds the resulting standard, the ambient shall be the standard. B. It shall be 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 a 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; �J http://www.codepublishing.com/dtSearch/dtisapi6.dll?cmd=getdoc&Docld=99&Index=D... 6/10/2013 PA2015-016 09-01-16 Submittal Attachment 2 Proposed Window Transmission Data 20 PA2015-016 09-01-16 Submittal MAGIC WINDOWS PARALLEX S/H CASEMENT WINDOW (BLIND OPEN) Sound Transmission Loss 70 STC 34 60 - - 50 m 40 a N N C O w m E C r c 30 'o N 20 .. .-._- ... -_. -- ..... '--..... 0 100 125 160 200 250 315 400 500 630 800 1000 1250 1600 2000 2500 3150 4000 One-Third Octave Band Center Frequency(Hz) —r Sound Transmission Loss —STC Contour CANADIAN THERMO WINDOWS INC. Report No. 102081921 CRT-001 a Page 5 of 7 April 16, 2015 g1 PA2015-016 09-01-16 Submittal GENERAL The sound-insulating property of a partition element is expressed in terms of the sound transmission loss. The procedure for determining this quantity is to mount (and perimeter seal) the test specimen as a partition between two reverberation rooms. Sound is introduced in one of the rooms (the source room) and measurements are made of the noise reduction between source room (10,000 cu .ft.) and receiving room (16,640 cu. ft.). The rooms are so arranged and constructed that the only significant sound transmission between them is through the test specimen. The test opening is constructed such that it is approximately one inch larger in size than the test specimen. The specimen is placed in the test opening an a half-inch bead of "DUX-SEAL", a dense, non-hardening, clay-like material, to isolate it from the supporting base. The space between the test specimen and the wall opening is sealed on both sides employing the same sealing material. The purpose of the Sound Transmission Class (STC) is to provide a single figure rating that can be used for comparing the sound-insulating properties of partition elements used for general building design purposes. The higher the rating (STC) the greater the sound insulating properties of the partition. The purpose of the Outdoor-Indoor Transmission (OITC) is to provide a single number rating that can be used for comparing building fagade designs, including walls, doors, windows and combinations thereof. This rating is designed to correlate with subjective impressions of the ability of building elements to reduce the overall loudness of ground and air transportation noise. It is intended to be used as a rank ordering device. EQUIPMENT Equipment Calibration Due Date S/N Model Brand Asset Date Microphone Calibrator 3/30/2015 3/30/2016 2130586 4231 BrOel and K'a:r A227 Pulse Analyzer 3/30/2015 3/30/2016 2519258 7539 Br0el and K'aar E446 Microphone/Pre- DF 10/2/2014 10/2/2015 2381159 4942 BrOel and K'a:r E449 Microphone/Pre- DF 9/15/2014 9/15/2015 2381160 4942 BrOel and K aer E450 DESCRIPTION OF TEST SPECIMEN The test specimen consisted of a 23 5/8 inch wide by 59 inch high Magic Windows Parallex S/H Casement Window. The window weighed 42 1/2 pounds. The sample was equipped with an internal solid blind. The window was tested with the blind open and closed. A drawing of the assembly (supplied by the client) is on the next page. Report No. 102081921CRT-001b Page 2 of 7 April 16, 2015 22 PA2015-016 09-01-16 Submittal REMARKS 1. Ambient Temperature: 70°F 2. Relative Humidity: 31% CONCLUSION The test method employed for this test has no pass-fail criteria; therefore, the evaluation of the test results is left to the discretion of the client. Date of Tests: April 7, 2015 Report Approved by: Report Reviewed By: ��_ �� c'rte•_ �. ...G/.:.< Brian Cyr James R. Kline Engineer Engineer/Quality Supervisor Acoustical Testing Acoustical Testing Attachments: None Report No. 102081921 CRT-001 b Page 7 of 7 April 16, 2015 g3 PA2015-016 09-01-16 Submittal REPORT 3933 US ROUTE 11 CORTLAND, NEW YORK 13045 Order No. 102081921 Date: April 16, 2015 REPORT NO. 102081921CRT-001b SOUND TRANSMISSION LOSS TESTS AND CLASSIFICATION OF A MAGIC WINDOWS PARALLEX S/H CASEMENT WINDOW (STANDARD GLASS) RENDERED TO CANADIAN THERMO WINDOWS INC. 75 ROUNDTREE DAIRY ROAD WOODBRIDGE ON L41L 6C8 INTRODUCTION This report gives the results of Sound Transmission Loss tests and the determination of the Sound Transmission Class on a Magic Windows Parallex S/H Casement Window. The sample was selected and supplied by the client and was received at the laboratories on March 27, 2015. The sample appeared to be in new, unused condition upon arrival. AUTHORIZATION Signed Intertek Quotation No. 500589471 TEST METHOD The specimen was tested in accordance with the American Society for Testing and Materials designation ASTM E90-2009, "Standard Test Method for Laboratory Measurement of Airborne Sound Transmission Loss of Building Partitions", and classified in accordance with the American Society for Testing and Materials designation ASTM E413-2010, "Classification for Rating Sound Insulation" and ASTM Standard E1332-10a entitled, "Standard Classification for Rating Outdoor-Indoor Sound Attenuation". This report Is for the exclusive use of Intartek's Client and is provided pursuant to the agreement between Intertek and Its Client.Intertek's responsibility and liability are limited to the terms and conditions of the agreement. Intertek assumes no liability to any parry,other than to the Client In accordance with the agreement,for any loss,expense or damage occasioned by the use of this report.Only the Client Is authorized to copy or distribute this report and then only In Its entirety.Any use of the Intertek name or one of Its marks for the sale or advertisement of the tested material,product or service must first be approved in writing by Intertek.The observations and lest results In this report are relevant only to the sample tested,This report by Itself does not Imply that the material,product,or service is or has ever been under an Intertek certification program. Measurement uncertainty budgets have been determined for applicable test methods and am available upon request. /� 2 PA2015-016 09-01-16 Submittal Attachment 3 Door Stop Seals and Threshold System Products 25 PA2015-016 N-01-16 Submittal PEMIND ,ass�►ABwv g�6rr �3,4' fa.fi) (1s.1) door bottom) /a" neoprene (N) (6.4) threshaltl(sill) } 313N Copyright C)2008 Pemko Manufacturing Co.All rights reserved. Reproduction 1n whole or 1n part without the express written permission of Pemko Manufacturing Co.is prohibited. 313 N PDF Rev1-05.25.08 — — 20 PA2015-016 N-01-16 Submittal PEMIND ,ass�►ABwv thermoplastic IP) 3 8 ss) 14" r (s.a) 1� P50 Copyright C)2008 Pemko Manufacturing Co.All rights reserved. Reproduction 1n whole or 1n part without the express written permission of Pemko Manufacturing Co.is prohibited. P50 PDF Rev 1-05.14.08 g� V� QP �P gg Attachment No. PC 6 Police Department Memo V� QP �P 9� Alk NEWPORT BEACH POLICE DEPARTMENT '' DETECTIVE DIVISION BES 43 MEMORANDUM TO: Brenda Wisneski, Deputy Community Development Director FROM: Wendy Joe, Police Civilian Investigator DATE: April 26, 2016 SUBJECT: The Village Inn Outdoor Dining and Land Use Amendments 127 Marine Avenue Use Permit No. UP2015-006 (PA2015-016) At your request, the Police Department has reviewed the project application for the Village Inn, located at 127 Marine Avenue, Balboa Island. Per the project description, the applicant is applying for an amendment to change the land use designation from residential to mixed-use for 123 Marine Avenue, which is a residential lot abutting the existing restaurant. The application also includes an amendment to allow a 240-square foot outdoor dining area on Marine Avenue, which would include proposed accordion doors on the Marine Avenue side of the building. Should the conditional use permit be amended, an Operator License will be required per the municipal code. The applicant maintains a Type 47 (On-Sale General - Eating Place) Alcohol Beverage Control license. Statistical Crime Data Attached is a report compiled by Newport Beach Police Department Crime Analyst Caroline Staub, which provides detailed statistical information related to calls for service in and around the applicant's current place of business at 127 Marine Avenue. The Police Department divides the City into areas referred to as Reporting Districts. This allows the Police Department to create statistical data, as well as better communicate officer locations while policing. The proposed applicant location is within Reporting District (RD) 42 which encompasses Balboa Island. RD 42 is not a high crime area, however, alcohol issues are a concern in this area. • In 2015, RD 42 was 36% under the city-wide average of reported crime In 2015, 38% of arrests in RD 42 were directly related to alcohol 9:L Village Inn UP2015-006 Over-Saturation The applicant premise is located within census tract 0630.06. This census tract has an approximate population of 2,831 with 14 active ABC licenses. That is a per capita ratio of 1 license for every 202 residents. Per the Business and Professions code, we compare this per capita ratio to Orange County's per capita ratio of 1 license for every 505 residents. This location meets the legal criteria for undue concentration. These same figures are presented utilizing Reporting District criteria instead of census tract criteria below: • RD 42 has 11 on-sale ABC licenses • RD 42 has 3 off-sale ABC licenses • RD 42 is over the Orange County per capita ratio of 1 to 505 • RD 42 is over saturated with a total per capita ratio of 1 license for every 197 residents Comments and Recommendations Since the Police Department's previous memo dated November 4, 2015 was written, patrol officers have responded to 6 calls regarding loud music or excessive noise. One neighbor made 3 calls, another neighbor made 1 call, and the remaining two were made anonymously or were unrecorded by police dispatch. Listed below are the dates and dispositions of the calls: • 11/6/2015, 11:15 p.m. — advised • 11/15/2015, 7:42 p.m. — unfounded • 11/20/2015, 9:41 p.m. — advised • 12/15/2015, 8:57 p.m. — unfounded • 12/19/2015, 11:01 p.m. — unfounded • 03/12/2016, 6:31 p.m. —advised Should the conditional use permit be amended, an Operator License will be required per the municipal code. A security plan will be required as an addendum to the License. As part of the security plan, the Police Department will request the Village Inn install security cameras with a one-month recording retention. The Police Department requests City Staff and the Planning Commission evaluate the following recommendations (these recommendations have been duplicated from the Police Department's previous memo dated November 4, 2015): • The Police Department anticipates the addition of the outdoor patio will exacerbate any existing noise concerns. If this project is approved, the Police Department suggests no exterior amplified music or loudspeaker of any kind be used on the patio. Given the close proximity to homes in the neighborhood, we recommend the outdoor patio be closed by 9:00 p.m. daily. Proper signs indicating, "No Alcohol Beyond this Point" should be displayed, and a barrier of at least 36" should be constructed around the patio perimeter. The patio, as well as all windows and doors, should be closed during live music. 2 92 Village Inn UP2015-006 ® Condition #25 of the restaurant's existing conditional use permit requires all employees serving alcoholic beverages complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. Records of such training shall be maintained and made available to the police department upon request. On 11/03/2015 1 spoke with applicant Dan Miller, who advised he could not be sure which of his employees were certified. Mr. Miller last conducted in-house training on the topic approximately 18 months ago. He has required certified training of his employees in the past, but it was closer to 2012 when he acquired the business. Given that [in 2014] 61% of arrests in RD 42 are alcohol related, the police department expects this condition to be met moving forward. Update: After speaking with Dan Miller on April 25, 2016, he reported 10 out of 12 staff members (servers and bartenders) are LEADS certified. The remaining two are newly hired and will be scheduled for training shortly. • Mr. Miller has indicated the restaurant's quarterly gross sales of food are 44% and his beverage is 56% of his total sales. He reports this food sales figure is up from 17% when he acquired the business. As common practice, City Staff applies to new restaurants what is known as the 50/50 condition within the industry. The condition requires the quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The Police Department acknowledges the positive direction Mr. Miller is taking and recommends this condition be imposed to bring consistent with current common practice. Update: On April 25, 2016 Dan Miller reported his current food to beverage ratio remains consistent at 44% food and 56% beverage. ® The Police Department recommends the Village Inn be required to install security cameras with a one-month recording retention. It is our experience that cameras in conjunction with proper signage will not only deter, but help us to solve crime. CONDITIONS OF APPROVAL Police Department requests all existing conditions of approval remain, and the following conditions be added (these conditions have been duplicated from the Police Department's previous memo dated November 4, 2015): 1. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The licensee shall at all times maintain records, which reflect separately the gross sales of food and the gross sales of alcoholic beverages of the licensed business. These records shall be kept no less frequently than on a quarterly basis and shall be made available to the Police Department on demand. 2. There shall be no reduced price alcoholic beverage promotions after 9:00 p.m. 3. There shall be no dancing allowed on the premises. 3 93 Village Inn UP2015-006 4. Food service from the regular menu must be available to patrons up to thirty (30) minutes before the scheduled closing time. 5. Strict adherence to maximum occupancy limit is required. 6. No exterior amplified music, public address speakers, outside paging system, loudspeaker, sound system, or other noise generating device shall be utilized in conjunction with this restaurant. 7. The operator of the restaurant facility shall be responsible for the control of noise generated by the subject facility. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. If you have any questions as to the content of this memorandum, please contact Investigator Wendy Joe at (949)644-3705 or wjoe@nbpd.org. Wend Joe Polic Civilian Investigator, Special Investigations Brad Miller Sergeant, Special Investigations Jay Short Lieutenant, Detective Division kAow�'-� David W. McGill Deputy Chief 4 9� C y Q Z n Z A D A D A O N N G OD W tNii Ch A N vi O S T w n 3 C Lo r i W V w n 4 A C C ire .Q 0 pp N Iv W N ao W c a ° m 'm F• n 2 a °• 12 N ;� g tA p u O CT I W IO O l0 V O) W lD r O Y1 O rAo 0 3 A < N 01 G N N tp w A A A ? CwrJ d �D C VI M Z N • ��yy d m S iV1 ? Om ^ i V (� Q �' t' 2 m N f O N N N R O d n R •O O �' In V tp N N r Z `T/ a > > A n• w 3 to o w w CL w o O A d S d C p S. et O h dd i..� �• 0 C � C Q A n w F• V N A W S d 79 R ry N S S a A w o - - 6 w \ N � .Z m j0 OWO 'W W D �' m R M J -J n R N ° � 3 n 00 a e w w7vo A 7y � 0 0 p o O • � Y v u Owob �^ w A w a bJYaO S O Q d 9� C C N �a 3 � S T T � N � c c O O C D O m 0 0 D z c c n n x z W 2 O S O Z �^ Z D fml p VCi T = v Z Z �c O M D m m D C N � � Z m C D 3 p 4 l r C O O x Z � O N r V r r W N tp N 9� NEWPORT BEACH POLICE DEPARTMENT DETECTIVE DIVISION 43 MEMORANDUM TO: Brenda Wisneski, Deputy Community Development Director FROM: Wendy Joe, Police Civilian Investigator DATE: November 4, 2015 SUBJECT: The Village Inn Outdoor Dining and Land Use Amendments 127 Marine Avenue Use Permit No. UP2015-006 (PA2015-016) Operator License No. TBD At your request, the Police Department has reviewed the project application for the Village Inn, located at 127 Marine Avenue, Balboa Island. Per the project description, the applicant is applying for an amendment to change the land use designation from residential to mixed-use for 123 Marine Avenue, which is a residential lot abutting the existing restaurant. The application also requests an amendment to allow a 240-square foot outdoor dining area on Marine Avenue, which would include proposed accordion doors on the Marine Avenue side of the building. Should the conditional use permit be amended, an Operator License will be required per the municipal code. The applicant maintains a Type 47 (On-Sale General - Eating Place) Alcohol Beverage Control license. Statistical Crime Data Attached is a report compiled by Newport Beach Police Department Crime Analyst Caroline Staub, which provides detailed statistical information related to calls for service in and around the applicant's current place of business at 127 Marine Avenue. The Police Department divides the City into areas referred to as Reporting Districts. This allows the Police Department to create statistical data, as well as better communicate officer locations while policing. The proposed applicant location is within Reporting District (RD) 42 which encompasses Balboa Island. RD 42 is not a high crime area; however, alcohol issues are a concern in this area. • In 2014, RD 42 was 26% under the city-wide average of reported crime • 61% of arrests in RD 42 are directly related to alcohol. Significantly, this figure is the same as the Balboa Peninsula's RD 15. 97 Village Inn UP2015-006 Over-Saturation The applicant premise is located within census tract 0630.06. This census tract has an approximate population of 2,831 with 14 active ABC licenses. That is a per capita ratio of 1 license for every 197 residents. Per the Business and Professions code, we compare this per capita ratio to Orange County's per capita ratio of 1 license for every 494 residents. This location meets the legal criteria for undue concentration. • RD 42 has 11 on-sale ABC licenses • RD 42 has 3 off-sale ABC licenses • RD 42 is over the Orange County per capita ratio of 1 to 494 • RD 42 is over saturated with a total per capita ratio of 1 license for every 197 residents Comments and Recommendations Code Enforcement advised the Village Inn regarding excessive noise on 02/20/2015. In response, police patrol officers self-initiated seven "patrol checks" at the Village Inn during the months of April and May and found no violations. Police dispatch has received four anonymous noise complaints year-to-date. On one occasion the officer noted that "one window was open one inch". Two of the four calls occurred on the same evening wherein officers needed to. return because the windows and doors were not shut after the first visit. In October, a patrol officer self-initiated a patrol check and advised the restaurant regarding the excessive noise. Should the conditional use permit be amended, an Operator License will be required per the municipal code. A security plan will be required as an addendum to the License. As part of the security plan, the Police Department will request the Village Inn install security cameras with a one-month recording retention. The Police Department requests City Staff and the Planning Commission evaluate the following recommendations: • The Police Department anticipates the addition of the outdoor patio will exacerbate any existing noise concerns. If this project is approved, the Police Department suggests no exterior amplified music or loudspeaker of any kind be used on the patio. Given the close proximity to homes in the neighborhood, we recommend the outdoor patio be closed by 9:00 p.m. daily. Proper signs indicating, "No Alcohol Beyond this Point" should be displayed, and a barrier of at least 36" should be constructed around the patio perimeter. The patio, as well as all windows and doors, should be closed during live music. • Condition #25 of the restaurant's existing conditional use permit requires all employees serving alcoholic beverages complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. Records of such training shall be maintained and made available to the police department upon request. On 11/03/2015 1 spoke with applicant Dan Miller, who advised he could not be sure which of his employees were certified. Mr. Miller last conducted in-house training on the topic approximately 18 months ago. He has required certified training of his employees in the 2 9g Village Inn UP2015-006 past, but it was closer to 2012 when he acquired the business. Given that 61% of arrests in RD 42 are alcohol related, the police department expects this condition to be met moving forward. • Mr. Miller has indicated the restaurant's quarterly gross sales of food are 44% and his beverage is 56% of his total sales. He reports this food sales figure is up from 17% when he acquired the business. As common practice, City Staff applies to new restaurants what is known as the 50/50 condition within the industry. The condition requires the quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The Police Department acknowledges the positive direction Mr. Miller is taking and recommends this condition be imposed to bring consistent with current common practice. • The Police Department recommends the Village Inn be required to install security cameras with a one-month recording retention. It is our experience that cameras in conjunction with proper signage will not only deter, but help us to solve crime. CONDITIONS OF APPROVAL Police Department requests all existing conditions of approval remain, and the following conditions be added. 1. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The licensee shall at all times maintain records, which reflect separately the gross sales of food and the gross sales of alcoholic beverages of the licensed business. These records shall be kept no less frequently than on a quarterly basis and shall be made available to the Police Department on demand. 2. There shall be no reduced price alcoholic beverage promotions after 9:00 p.m. 3. There shall be no dancing allowed on the premises. 4. Food service from the regular menu must be available to patrons up to thirty (30) minutes before the scheduled closing time. 5. Strict adherence to maximum occupancy limit is required. 6. No exterior amplified music, public address speakers, outside paging system, loudspeaker, sound system, or other noise generating device shall be utilized in conjunction with this restaurant. 7. The operator of the restaurant facility shall be responsible for the control of noise generated by the subject facility. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. 3 99 Village Inn UP2016-006 If you have any questions as to the content of this memorandum, please contact Civilian j e igator Wendy Joe at 949.644.3705 orwjoe@nbpd.org. n y Joe ic Civilian Investigator, Special Investigations 'w WL fN / I( Brad eller Sergeant, Special Investigations Jay Short Lieutenant, Detective Division 4 100 3 3 ti; '^ a w d F v A v p A Q • v o N w 'o r6 N 000 V. ~O j C M O A W p 01 J N In n R m ^Ow m N A V b 00 N W O N gypp" Ip D. 4 d N n O ti O N W W LA N A , C C w N � � � � � • '{i O •`yam N n S C N N N :R x O. O OO O O O) mW W N pAG A N NLM rm Q o O ry O O \ a N 000 Opi W 0000W g > d Ji n T a Q A N Z m _G ^ z ° OD [ 7l O S H N A E S O N tp N T A S n N 00 O N ry rm O. Q m In l0 N N do-4 ° 9 C77 C ? h n d d jp �• m N CD d m PT7 �. o w 0 ;4. < w o I w fD A � f+ r � p 9 n — A ...] ? N n � a N O w 'ppi m O O Z m o 000 1 ° 2 A v vOi w {n ➢ A m 1p a g o � 3 ti in m � � v •� CITYO 1 i O o � N N N • � Y-0 � $ t�D lw0 V HJY'd0 o £ r � N 101 V� QP �P 20� Attachment No. PC 7 Site Photos zoS V� QP �P �o� y t� • � , . . . MOW - - PROPOSED I V� QP �P zoo Attachment No. PC 8 Project Plans 107 V� QP �P zog PA2015-016 Attachment No. PC 8 - Project Plans NO. REVISION DATE THE VILLAGE INN A-5 (E)81 + PROPOSED SITE IMPROVEMENT PLAN o F m z I b E,SGN I 127 MARINE AVENUE I = \ I BALBOA ISLAND, CA 92626 N / - - - - - - - - - - - - 75.00 W - - - - - ❑ _ N 7 (D (N)3'-1" w I W N N (E)516N O 0) ii ❑� m ; l! Cc: ULb0 L _J CCEO \1 Z O ca Q Nm mmi �- 5'—O.. I N.T.S. F— L _J 5 O I � I F— —1 l u 7) I (E) V I LLAl INN o R 57AU AN7 I L —J 5 Y 15UAL I ZA71 ON of 4 _ (E) PROPERTY V•1ALK LINE5 � �2 (E) SIDE „ m tui m I �3 EXISTING b' WOOD FENCE L _J 4 REMOVE (E) WINDOWS AND ADD FULL HEIGHT BI-FOLD SOUND ATTENUATING —� I 8 DOOR5 FOR NEW * PATIO ACCESS FOR I INDOOR/OUTDOOR TABLES A-5 5❑ NEW 36" HIGH METAL RAILING FOR DINING PATIO !!! . ZZ © (E) LANDSCAPE _ 04 ELEV. ❑! (E )SOUND ATTENUATING WINDOW �` Z W N I UJ ^ � I L J ® (E) SOUND ATTENUATING EXIT DOOR LL Q U ® (E) ADA ACCESS RAMPW 10 y p NEW CONCRETE AREA FOR 10 BIKE RACKS, MIN. (THIS EQUALS 20 BIKES, MIN.) *'." W Z Z II NEW LANDSCAPING FOR SCREENING BIKE RACKS J W Q 12 \� > 2 — I L J / OCa. N a �3Hal RAl2 W a I "1 I ® 11 m El 20 51 <E5 70 5E m E REST?(URANT EXIT PATH OF TRAVELAC STORAGE m20 BIKES 1 p (SEE SPECIFICATIONS ON SHEEET A-3) MINIMUM v i- 10 ° 7 _o, J 5'-0" 4'1 24'-0" north W ...... j BIKE i sH,+. �OC s) Balbo�l1 qd. LU I LM 00 Pillik Airlift: '�,\�� ;rt#'1 to a i ■ -I V1 SIGLR6E I? O O O O O OT ..,....... ..-.1 .......... ... .. -. ... — — — - — — — — 2 MARINE AVENUE DATE: �J5.001 BALBOA ISLAND, GA 8/29/16 nmkpqunt 3 500ft 12626 100m DRAWN BY: TRUAX PROJECT NO. THE VILLAGE INN 51 T FLAN SHEET ® JAY A.TRUAX.expressly reserves its common law copyright and other property rights in these plans.These plans are novo oe reproduced,changed or copied in any form or manner whatsoever,nor are they to be assigned to any third party,without first obtaining the express written permission and consent of JAY A.TRUAX. _. PA2015-016 Attachment No. PC 8 - Project Plans NO. REVISION DATE — 777 \ li - 05ION \ '�� r -I� - - r- 7 r -� - - rli A r -� - - -1 -1 1- -� - - rl- J _ L —L L - J L —L L I JI L —L LJ— J L —L -LJ— J �L - - J�L - - /� _\ \ +t � , t \ FIREPLACE EXIT EXIT \I E)FIREPLAGE 3'-10" u c\; \ENTERTAINMEN \ 4'-O" 5PKR of ' \ 77-7r — \ — - - - - \ J'\ - ' t�R1A ^ ph 1- -LI - - -I ^ � (E)YI LLr4GE INN L - JL - J L - JL - JL - JL - J \ 1 5 \\ \\ / c\� \�� < < > _ — — — — — — < > RE57AURANT EN7ER7AINMEN7 _ Z AREA — F — -1 O L J ^ / <� 5PKR > Q 7 (0 LI— J \ / / \ \ / \ / \ \ / L _ J L — J < / > \\ - - - Iw 4'-q" J OQ � 't (a j / i b'-3" Q 0)Q LO 0\> </ \ >< > � _ ^<\/' > 'O\ / \/ \ / \ \ I IL L � EVENING ENTERTAINMENT ARRANGEMENT 0 U �-0) L — J ./ r J < , > , , \ � \ / / \ \ / \ / \ \ , LL cocODD - - � _ \/ / / < /> \ \ o L J Z_ Q (zNt) (E)AE5TDINING L - JI /> ,^\\f ' \� < <� \ Ig Q � Q �' � ®o ROOD L - J </' >v <\ /,> \ / \ /> < / \ O z r n r p U < >< \ 42 SEAT\ > I I < > ^ \ o L J a �` � (0co :9 ro \ f / \ \ , \ / / \ \ , r - E 5AR / - - LI_ J / �\ /v �\ L _ J \ / </ \>� o ry L _ JI 25 SEik_ 5_ Ir J — — — /^\—`— — +t — — — — — — — — — — — Io O � m / L — L — � Ra \ — — \ r — , ^ — — — - - - -- v / � � f- J r J — ^<\'/ > �' \ < / /> r JL — JAL — J J o L J a _ _ _ z _8 I / f I- - - -I- - - </ 9 \, / , w I-L ^'\ �/' <' , >�' /<\ > L - J L - J I Q 1I' W N - - - \ < > \ / / \ OJ > (E)E,45T DINING ,— Q } FO r J \ \ </ ' >./' ^ ROOM ^ I a N _, — / � '5E�TS \� \ L J <\ > \\ / < >�\ /� I PAT o El > < �\ >< / > E MEN E HALL EXISTING BIKE RACKS (E)5TA6E TO BE I REMOVED I L <t > I (ALSO, SEE SHEET A-1) Li- - - - - - — (E) PROPERTY LINES UP E5TOR. L J < \` / \ /> I w �2 (E) SIDEWALK Fz — z l �3 ROOF OVERHANG ABOVE �0 (E)OFFIGE — rl_ J ^ W04 ® TABLES AND CHAIRS, TYP. ALL OUTDOOR PATIO AREA Z E AO N ' o L J EPATH OF TRAVEL, 1:12 MAX. SLOPE W W E STOR. L _ J < / >< \ > \— N > Q E STOR. - \ / , \ \ , I © NEW CONCRETE AREA FOR 10 BIKE RAGKS, MIN. (THIS EQUALS 20 BIKES, MINS Q U v o </\ ^� NEW LANDSCAPING FOR 5GREENING BIKE RAGKS Q Z Z Z O \ >< / > W (E)KITCHEN o _ _ J > < E MEN i o I� 5TA� AUNT C4 Q L � W °m Q, a ® < ^/ >< \^\> <'^/ X \^\> I N L J (E)RESTAURANT 3061 SF Q g (E)KITCHEN 466 SF = m TR?�5 (E)GOOLER O <<\\ >< / /> I � '^ �'^I\ I (E)OFFICE 118 SF > > (E)STORAGE 707 SF EXIT DOOR TOTAL 4352 SF Y11/50UND a' ' \ NEW PATIO 200 SF (E)AOMEN GASKETS,ETC. < ' EXIT 5 L _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ m (E)APT ABOVE REST. 124q SF � — - - - - ��I' i . - - - - - - - - — - - - - — - - - - - - - - — — TOTAL I 124q SF (E)GOOLER I 2® DIKES — MINIMUM o 3'-0" EQ. EO. EO. EO. EQ. EQ. EO. EO. EQ. 3'-0" "' LOT AREA I b 12-7 MARINE AVE. 4475 SF J LU IM 5EA71NO 00a WEST DINING ROOM 42 SEATS O 20. EAST DINING ROOM '74 SEATS U. W BAR 21�5 SEATS � LM Oi NEW PATIO 16 SEATS v, TOTAL 157 SEATS I (E)G,4RA6r= A/ 2ND _ W J 5TCRY APARTMENT LL Z LL A50\/r= DATE: 8/29/16 DRAWN BY: TRUAX I I I PROJECT NO. THE VILLAGE INN I 5T �L®® FLAN O � SHEET F SCALE: I/4"=1'-0" \\II D A 2 O o0 o0 o ° 0 0 JAY A.TRUAX,expressly reserves its common law copyright and other property rights in these plans.These plans are not to be reproduced,changed or copied in any form or manner whatsoever,nor are they to be assigned to any third party,without first obtaining the express written permission and consent of JAY A.TRUAX. 110 PA2015-016 Attachment No. PC 8 - Project Plans 5 I C� L RACK 5FEEC15 OR 5 I y I L A NO. REVISION DATE 6° (E)51GN HOOP RACK t FLU5H WITH (E) 5TREE7 r (E)GONG. 5IDEWALK = (E)5LOPE DN. 1:12 MAX. 40 (E) ADA RAMP ry (E) ADA _ Z I - - — — P � D � (E)5TREETLI6HT Q O ; � \J X11 m N Gjv HIGH VOLTAGE o o VAULT 06 ill Q o 4 / C: C) - - — — — - - U Ld0) M ° MQ _ o � � coNm = _ Q E0 ai 'Ta (E)P R l01 0) CO CO noco m r- Q 0 Q (E)SIGN r — — — — ,D L - - - J L - - - J lU Ili r a' • P Q +t FLOF— L + - - - - + -L + - - - - + J o (E) 5 � � Simple Security The Hoop Rack Is a proven design that provides high security and easy bike parking.The Hoop Rack uses UNtk pipe construction and the full radius;or the \ r — — — bend makes the Hoop an attra(.t:ve and functional hike rack This Uike rack REMOVE (E) PLANTER AND REPAIR can also be put on rails for mob+ldy aad is popular in bike corrals — ' 51DEWALK, PLANTER AND A00E551BLE _ I _ RAMP A5 REQUIRED BY THE CITY OF Z co — — — — — — — — +1 o'-I°t NEWPORT BEACH Cf) � I I ® ZN = LLI � 0+20115�eco � Z Z Z 4 - - - - 4 (E) ROOF OVERHANG J w Q I > _ � Q J - - - J r 0 l p m Q = m l o I I I w I � — NEW 36" HIGH RAILING (5EE EXTERIOR RAILING ELEVATION BELOW) CORNER PLAN _ SCALE: Y ` Q O Q V! UJ JLQ }V. W W UL0 Cal Cnad (E)RE5TAURANT o DATE: FIN15H FLOOR r - — " 8/29/16 DRAWN BY: o - - T - TRUAX PROJECT NO. THE VILLAGE INN �I _ 36" HIGH DECORATIVE METAL RAILING SHEET PATIO (APPROX. 80% OPEN, 10% REQUIRED) RA I L I NC5 EAST L \/A7 I ®N q_3 SGALE: 1/2"=I'-O" 0 JAY A.TRUAX.expressly reserves its common law copyright and other properly rights in these plans.These plans are not to be reproduced,changed or copied in any term or manner whatsoever,nor are they to be assigned to any third parry,without first obtaining the express written permission and consent of JAY A.TRUAX. Planning Commission - October 20, 2016 Item No. 3a Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) From: Mike Sullivan <sul livanphoto@ road ru nner.com> Sent: Sunday, October 16, 2016 4:28 PM To: Kramer, Kory; Dunlap, Bill; Koetting, Peter; Hillgren, Bradley; Lawler, Ray; Weigand, Erik; Zak, Peter; Biddle, Jennifer; Campagnolo, Daniel Cc: Peter Bergman; Suzanne Savary; Wisneski, Brenda Subject: Village Inn correction -- Here is the correct attachment Attachments: Attachment for commission Oct 2016.doc Follow Up Flag: Follow up Flag Status: Flagged Dear Commissioners, Here is the correct attachment. Sorry for the mistake It has been almost a year since the commission voted down the proposed expansion of the Village Inn for outdoor dining and the relocation of the city owned bike rack into the yard next to my house. Now they have reapplied for an almost identical expansion, but with even worse implications for our neighborhood. One would think that these owners would have been on their best behavior for the intervening time, but the opposite has been the case. I started the attached email to Brenda Wisneski in April of 2016, but kept adding to it as the violations continued to get worse. You will therefore see a progressive cataloging and display of scores of violations of both municipal and use codes. I urge you to read the entire attachment. Included in this report are references to over fifty video recordings clearing showing loud nightclub music in my house and out on the street. You will see recordings as recent as last week of screaming and dancing, both inside their building and even outside where the music is so loud that passersby and customers dance on the sidewalk. All this is in clear violation of municipal code 5.28.040 sec. B-3. That code clearly states that as a condition for approval of a live entertainment permit, the sound shall be contained within the building. You will also see and hear additional multiple violations of their use code and entertainment permit, all laid out in the attached. I again urge you to read the entire attachment. Many of these videos will surprise and even shock you since staff has been trying to sell the notion that the Village Inn is a good neighbor, worthy of further expansion in our direction. I urge you to contact me very soon and ask me to show you these recordings before Thursday night's meeting, as I don't want to turn that meeting into a circus. You may notice in the attached that there is almost no mention of police action, or for that matter police inaction. I retain a certain personal loyalty to the department, having served as a Newport Beach Police Detective and before that a street cop. So there will Planning Commission - October 20, 2016 Item No. 3a Additional Materials Received be no direct criticism for the public record, bLD-L- illlled yuuQbtdamnldtminAtlwERmetitc(d,l015-016) would never, ever have allowed this kind of disturbace of neighbors and illegal activity on my beat. Thank you, Mike Sullivan 949 673-4444 Z Planning Commission - October 20, 2016 Item No. 3a Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Dear Brenda — It has now been more than one full year since the owners of the Village Inn were ordered by the city to correct the illegal knocking down of their interior sound barrier and moving their stage, which has resulted in four years of torment for my family. This illegal deconstruction was and is a clear violation of section 6 of their entertainment permit, and has been at the heart of the neighborhood noise problem for four years now. The city has done nothing to enforce that notice to correct. On the contrary, you (the city) have enabled their behavior to continue unabated for another full year and a half. We still hear the relentless sound and vibration of band music inside our house. No one in city government seems to comprehend just how much damage you have done to my family. You have collectively not understood or appreciated, or acknowledged our description of exactly how stressful so many hours of band music inside one's home can be — especially the bass. Recently, when I stepped outside my front door there was a Village Inn employee on his break— dancing to the band music that we could both hear. He was five feet from my front door. When he saw me, he gave a short laugh and walked quickly back to their building. Remember, my house is two houses removed from them, and the music can still be heard plainly. Even their employees are aware of what they are doing to us. This is no way to live, but this is what the city has stuck us with. On another occasion a few months ago there was a young man right outside my door with a decibel meter. I was hoping he was from the city, hopefully about their roaring dual air conditioners, but he wasn't. We chatted. We could both plainly hear the music, even over their incredibly loud air conditioners, which have run 24/7 for most of this past year, and depending on their state of frequent disrepair often sound like a freight train. (Another report) He told me that the owners would be trying to lower the decibel level from inside their building. Remember, this is four years after their violation began, with no relief from them or from you. But now they want something from you, so we get more stalling, more public relations, and a show of partial fixes like the "sound absorbing paint" they told the planning commission they used. You're being bamboozled again, and again we're paying the price for the city's inaction. As I told the young man with the decibel meter, "If it's loud enough to be heard inside my house it's too loud." And if it's loud enough to be heard out on our sidewalk, it's a violation of their entertainment permit and a separate violation of their use code, and an additional violation of municipal code 5.28.040 section B-3. Talking about taking the sound down a few notches on a decibel meter, which they have now obviously failed to do, is not enough since Planning Commission - October 20, 2016 Item No. 3a Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) we can still hear it in our house. But then, it's not us they're trying to impress. It's you. (Recent insert) Even now in July thru October of 2016 we still hear band music in our house! It's very annoying. We keep our windows closed at night even when it's hot. Sitting out on my patio at night (once my favorite part of living here) is now impossible without hearing band music on certain nights. The same is true for our neighbors across the street and the porch they love so much. And of course no amount of public relations can fix the fact that they still sometimes leave windows open during nightclub music, as they did recently for two hours. The music was so loud that the woman across the street and three houses down could hear it inside her living room had to call the police. This is a violation of sections 7, 8, and 9 of their entertainment permit issued in July 2012, and an additional violation of municipal code 5.28.060 section C. But our main complaint remains their refusal to contain their band music within their building even when their windows are closed. Once again we had to do our own research to discover city codes that should have been enforced, but were not. Not only can we hear band music inside our house, for four years this band music could obviously be heard outside on the sidewalk. And I'm not talking about the front doors where a reasonable amount of noise will be heard with opening and closing. On our side of their building, passersby can be seen dancing and screaming from the sidewalk at some bands in particular to Go, Go, Go! Municipal code 5.28.040 section B-3 states that as a condition for approval of an entertainment permit, the band music shall be contained within the building. Failure to comply with this provision is cause for the city manager to revoke that entertainment permit! This came as new information to us, and makes your staff report quoting police and code enforcement at the Dec. 3 planning commission meeting regarding noise levels and "self-initiated bar checks" that reported "no violations" — now seem absurd. Anyone walking or driving anywhere remotely near the side or back of the building in the past four years would be able hear band music loud and clear outside of the building. That would include two police officers last winter who could plainly hear how loud it was from across the street more than a hundred twenty feet away near the restrooms at the fire station. They said they were too busy to help, but would return later, which is another story to be included in a future report detailing many additional such police incidents and inaction. You in city government know all the codes. How did this happen, that such an obvious and ongoing, egregious violation was allowed to continue? For four years they violated this municipal code almost nightly and you in the city did nothing to help us. Limiting the band to five musicians hardly exempts them from "reasonably" complying with this municipal code as it was intended. Their loudest band has only three musicians, but many bands employ synthesizers, which 2 Planning Commission - October 20, 2016 Item No. 3a Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) imitate multiple instruments simultaneously, making these numbers meaningless. Why write a municipal code if the words don't mean anything? Either the words in the code mean something or they don't. Furthermore any time a police officer or code enforcement person enters the building, he or she would be looking right at the violation of section 6 of their entertainment permit, which states that band music shall be performed on the stage as it is shown on the floor plan submitted with the application. That would be the case each and every time, each and every night for four years. And remember, it was the deconstruction of that sound barrier and the moving of the stage that is the crux of four years of torment for my family and the neighborhood anger at these owners. And it was the reason the city was finally forced to get involved. And yet it's still there in defiance of your order to correct. The man with the decibel meter gave me the idea to videotape the band noise, which I did a few weeks later. Back in 2012 when they first violated their permit and made such a racket and because we got no help from the city, I videotaped the screaming and dancing from my own living room. This was before we convinced the owners to at least get some sound curtains (which they then wanted us to pay for). From inside my own closed living room window, all the way across the yard we could hear very, very loud band music, which could be heard plainly inside our house. I have several nights of such videotape, which I told code enforcement about to convince them to help us out. We were assured that help was on the way, so I never showed it to them. All videos have now been downloaded and are available to the city manager. Updates: On April 26, 2016 the band music was so loud that I again videotaped the noise coming from the Village Inn. I stood out on the street, thirty feet away from the side windows of their building, almost the same distance from the restaurant to my house. I went out there six different times and recorded about a minute each time. Anyone viewing any one of these recordings would conclude that after four years, this business is still in gross violation of common decency and several city codes, and still the city has done nothing to help us. This is no way for my family to live. This is no way for me to spend my time. Update: On May 3, 2016 1 again videotaped the loud band music from the street, again showing very obvious violations. Another update: On May 17, 1 once again recorded very loud music, showing fifteen or twenty people dancing and yelling. This incident of multiple violations was so loud and boisterous that any person viewing this video would insist that the city manager has cause to revoke their entertainment permit. (See municipal code 2.28.060 section c) Another update: Monday May 23, 2016 was a typical example. The band was not particularly loud, so we thought we'd have a quiet night. But my son couldn't 3 Planning Commission - October 20, 2016 Item No. 3a Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) sleep so he asked me to rub his back. As I sat on his bed and rubbed his back, it got really quiet and I realized what he meant, and why he couldn't sleep. I could feel the bass myself, and knew I would not be able to sleep through that either. We've told these owners about what the bass does to us up to seventy or eighty times in texts and in person. It has never done us any good. They do what ever they want. More videos: On June 3, 2016 1 again recorded several videos of loud music coming from the Village Inn. More videos: On June 21, 2016 1 again recorded loud band music coming from the Village Inn. (Additional video recordings now continue into July, and now September and October) Recent insert—August: It appears as though this writing will evolve into a running commentary as I had planned to send this to you and the planning commission when the next hearing was scheduled. But now fifteen (15) Zoning Administration hearings have come and gone without a date set. Meanwhile they continue to ignore your order to correct, stretching out their ongoing violations for a year and a half and still counting. Now we're into September and October. These examples are the tip of the iceberg. They illustrate just one of many reasons why a city should never allow a restaurant to behave like a nightclub right next to people's homes — using the false assumption that noise ordinances could possibly address the problem. The city should never have permitted this to happen right next to our homes. And we will never accept it as status quo. The decision to grant a permit allowing the piano bar to be replaced by amplified music with up to four (now five) piece bands, including drums was made by the finance department — not the planning commission, not the city council, and with no input allowed from the neighborhood. (The finance department? This is no way to run a city.) This is no way to treat the taxpaying residents of such a quiet, quaint, peaceful community as Balboa Island. And then these new owners even violated that permit, and took it to another level never seen here before. Up until these new owners, we had the best block on the Island. Our houses are near the shops, yet we had peace and quiet on our short one-way street. And before these owners came — right next to the restaurant was the prettiest yard on the whole Island, which was also the buffer between the restaurant and our homes. They changed that beautiful residential front yard into a backyard dumping ground for broken and discarded restaurant equipment with trash piled five feet high for months at a time, including discarded restaurant booths and broken tables, and even a rusted out broken water heater. The almost three years of deliberate squalor has been well documented, and finally acknowledged by code enforcement. See many photos. (Much more on that purposeful and unbelievable squalor later) In 2002, the planning commission refused to take a vote on whether to grant approval for amplified music, including drums at the Village Inn. This was only 4 Planning Commission - October 20, 2016 Item No. 3a Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) months after a contentious hearing on this very subject of loud band music disturbing the peace and quiet of a neighborhood in CDM. The minutes of that meeting on October 18, 2001 show that this would certainly be a situation to be avoided again — pitting a neighborhood against a boisterous restaurant behaving more like a nightclub. Nevertheless, the commissioners did avoid the subject, by passing the buck to the finance department, stating that the planning commission lacked jurisdiction on the matter. The result is the same mess discussed by the commission just months previous. The minutes of that commission meeting regarding the CDM restaurant on Oct 18,2001 revealed something else very relevant. Back then as is the case now, no one in city government, including the police, fully understood exactly how disturbing the sound of unrelenting bass music hour after hour can be inside one's own home. Police and planning commissioners were wrestling with various decibel readings of ambient street noise vs. band music, even attempting to mitigate the annoyance factor by noting that at some moments in time, the band music heard outside was no louder than the ambient street noise, thus seeking to minimizing the stress felt by those homeowners complaining. I felt sorry for those complaining homeowners as I read the minutes of that meeting because I know exactly how they felt. One owner said he could "feel" the vibration of the bass. This was refuted by a police officer who said that when he went there he could not feel vibration. Of course he couldn't. He was outside. This was, and is a ludicrous comparison because ambient "white noise" is not heard once inside your house, but the competing band music, especially the bass can clearly be heard and felt. The Type of noise is more relevant than decibel levels. Noise ordinances are useful when it comes to air conditioners and leaf blowers, but completely inadequate when trying to measure the annoyance factor of nightclub band music penetrating people's homes. Hearing hours of band music along with screaming and cheering is far more annoying than ambient street noise. The city needs to understand these differences before some judge or jury figures it out for them. Nightclubs have their place in any city. But the Village Inn is a restaurant— not a nightclub. A restaurant behaving like a nightclub should never be deliberately placed right next to people's homes by city planners. The situation at the Village Inn did not just evolve on its own. It was created by the city itself, and exploited to the max by these particular owners. Ironically, on the very same day of the aforementioned contentious meeting on Oct.18, 2001, the planning staff authorized a 90-day trial period allowing amplified music, including drums and up to four performers at the Village Inn. There is no logical explanation for this move, since it was known by everyone on staff, how volatile this situation would be at the meeting that very night about the CDM nightclub. And of course the 90 days became 245 days before the 5 Planning Commission - October 20, 2016 Item No. 3a Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) planning commission even took up the issue. There is no explanation offered for this five-month delay. But this unexplained lapse in time gave a sense of semi permanence to the new much louder music, an attitude that reveals itself in some justification by commissioners during the meeting on June 20, 2002. The minutes of this meeting show a convoluted rationale for punting the decision to licensing/finance, claiming lack of jurisdiction. The staff had recommended that a new entertainment and/or use permit be applied for and voted on "because allowing amplified band music with drums would be a substantial change to the business." The staff was right, and quoted Section 20.82.060, which states that a substantial change in operation of a business requires a new use permit. The assistant city attorney agreed. But the commission found a way to disagree and punt the decision to licensing. The vote was 4 to 3, with the dissenting voices pointing out that this was more than just a licensing issue since they would essentially be changing a restaurant into a nightclub, and that of course it should be a commission vote, followed by a city council vote. One of the commissioners on the majority said in effect, "Who cares if they get drums . . . we have noise ordinances," apparently not remembering or valuing the concerns at the meeting nine months earlier, or appreciating why the chamber was crowded with people ready to tell them the ordinances weren't working. Furthermore, the Village Inn was acknowledged by staff and commissioners alike — not even to be in conformance with the permit it they did have. This fact makes their eventual vote even more unexplainable. The chamber was crowded with neighbors waiting to make their public comments because of the annoyance factor. Chairperson Tucker made a motion that since these people were already there, and because this might eventually go to the council, they should be allowed to speak so the council would have a starting basis for discussion. He was voted down, and we the people were forever denied our chance to address the issue and protect ourselves. Shame on them for that vote! Likewise, the council never got to address the issue. So just like that, against the advice of the assistant city attorney and the planning staff, and arguably in violation of Section 20.82.060, the city allowed a restaurant to behave like a nightclub and we the people were denied any say in the matter and told to go home without speaking. We do not accept this as status quo. The Marine Ave. neighbors dealt with the new situation because those owners placed the band in the back corner near the alley and as far away from windows and our houses as possible. When the nightclub atmosphere did lead to too much noise at closing time in 2009, the neighbors got them to close at midnight instead of 2a.m. Those owners were cooperative in this effort, and the neighbors and owners were friendly, even sitting together after the vote, myself included. When the bandstand was moved to our side of the building, the owners protected the Marine Ave. residents with a floor to ceiling sound barrier behind the stage, and faced the speakers away from the houses. That, along with the carpet and large booths worked to contain the noise, and we had mutual respect. 6 Planning Commission - October 20, 2016 Item No. 3a Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) That all changed with these current owners who stripped the place bare, including the sound barrier, and violated every rule of common decency and multiple ordinances laid down by you, the city, which you then declined to enforce. This resulted in four years of torment for my family — Four years of stress that we can never get back. To know what it feels like think of it this way. Have you ever pulled up to a stoplight and clearly heard and somewhat felt the bass music from the car next to you, even if both cars have their windows closed? If you got out of your car, the music would be no louder than the street noise, and certainly not annoying. But in your car, with your windows closed, you can feel the bass. That's how it is in our houses, we hear mostly the bass and often the other instruments and voices too, along with the customers' screaming. At the stoplight it's over in a minute. In our houses it goes on for hours and drives you crazy. Or think of it another way—just to illustrate the absurd by being absurd. You are in your office at city hall trying to concentrate on work. A colleague is sitting nearby promising to be quiet. But every second like clockwork that person says "Hmmm." Every single second for hours! You ask that person to stop, but they ignore you. As we did with the Village Inn, every person in the building signs a petition asking this person to give you a break. Nothing changes. So you call code enforcement. They show up with a decibel meter and tell you that the sound you hear from this person is no louder than many ambient sounds around the office, so there is "no violation of sound ordinances." You are astounded. This "Hmmm" sound is inescapable and unrelenting. Sometimes it gets even louder than when code enforcement was there. Every single second for hours at a time, 60 times a minute, 3,600 times an hour, for hours at a time. Hmmm, Bmmm, Hmmm! Bmmm! City Hall knowingly ignores your problem. So you call the police. They come to your office and sympathize with your problem, but can't help you because as they did with the homeowners here and in CDM, they don't comprehend what hour after hour of this noise can do to your peace of mind. It's not the volume of the bass that's so annoying. It's the unrelenting incessant nature of it. Even when the volume is low, there is no escape from the "feel" of it. Therein lies the tormenting aspect of something inside your home that you cannot escape. No decibel reading can mitigate this angst. Of course in our case there is a lot more. There are additional known multiple violations of their use permit, violations of the building code, and violations of six sections of their entertainment permit. You (the city) have known about the violations of their entertainment permit for four years now, and have done nothing to help us. Even after ordering them to correct the violation of their entertainment permit and other use permits, you have allowed them to continue these violations for another complete year and a half at our expense. You can never give us back those hundreds of hours of stress. Even if you could press a button right now and make all the noise disappear today, could you give us back the four years you have allowed my family to be tormented? It's downright 7 Planning Commission - October 20, 2016 Item No. 3a Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) unconscionable what you have allowed them to do to my family. Just ask our children. That's why we write to you again, to urge you not to harm us any further as they seek to expand in our direction. Is it not obvious to all of you by now what their business model is? They want their music performers to be seen and heard from outside the building — the neighbors be damned. That's why when one of the planning commissioners suggested on Dec. 3, 2015 that the stage be put back in it's original corner location where it would cause the least disturbance outside, and reach the most customers inside, it was so quickly and emphatically rejected by the owner. That answer should have been an eye opener for each commissioner. So it came as a shock that your plan to take away our city owned bike rack to give them an even bigger gift of outdoor dining and rezoning a residence got even a single vote. Back when I bought my house the Village Inn was the flagship restaurant on Balboa Island. It had white tablecloths, a quiet piano bar, and a romantic atmosphere. Now it's a saloon/sports bar by day and behaves like a virtual nightclub at night. For example, the school bus drops kids off on there at 2pm and 3:30pm in the afternoon. We were told by the bus driver that one of the parents of the younger 2pm kids called the school transportation department and requested that the drop off location be changed because there were always Village Inn drinkers sitting or standing, and smoking at the bus stop. The request never got any traction, but it tells us something about the atmosphere there. No other restaurant on our Island has such a saloon atmosphere, which is evident even out on the sidewalk. This is the last place we want outdoor dining. Here's how you know the difference between a restaurant and a saloon/nightclub. With a nightclub, the size of the crowd is determined by which band is playing and how loud they are. When it's a restaurant, you don't have people puking in the alley behind your house. With a restaurant you don't regularly hear screaming from inside your house and even across the street. With a restaurant, you don't have neighbors as far as South Bay Front complaining about people urinating in the street at closing time. With a restaurant you don't have the band taking a break right in front of your house, smoking weed. You don't have another band partying during breaks while sitting in a car in front of your house and leaving the beer bottles on your patio. You don't have people screaming as they walk to their cars the length of our street at closing time. You don't have beer bottles left on the bike rack at closing time, or on the patios of the houses on our block. In 38 years I've seen 5 owners of the Village Inn and there has never been anything like what these owners have done to the neighborhood. And the city has acted as an enabler of this horrible behavior. What the city has done and allowed to be done to my family is reprehensible. Remember, before these current owners did what they did to their building, the music was contained inside the building, and if it did escape it went out the front doors when briefly opened -- to the commercial street on Park Ave. And knowing what the city has 8 Planning Commission - October 20, 2016 Item No. 3a Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) already done to us, your planning staff is still acting as an advocate for actions that will harm us even further. We are urging you not to continue recommending additional concessions that would further damage our peace and quiet, and quality of life. Your own website indicates that the city has not only known about the illegal encroachment and illegal structures for at least fifteen years, but actually signed off on the completion of one of those structures. This structure should never have passed inspection for its shoddy construction, much less its admitted illegality. Your inspector also signed off on the completion of a door from the restaurant into the residential garage. He would have known full well that this was a violation of zoning laws and use permits. Your building inspector knew all this was illegal construction, and yet gave it his seal of approval. As soon as that inspector took note of illegality, even writing it down in his report, the city should have ordered it removed. And in 2012 these owners built another door from the bootleg to the residential yard, which also escaped your attention. This is what the city has stuck us with right next to our home and our children. They broke the law, and the city knowingly looked the other way. You cannot sweep that under the rug now by harming us even further. This scandalous malfeasance (regardless of how long ago it started) cannot be covered up by now doubling down on the damage to the neighbors. If classifying this property as nonconforming is the right thing to do, why was it not done fifteen years ago, or for that matter, a year and a half ago when you were trying to help them get them mixed use privileges? Why was planning staff trying so hard to first promote mixed use, and then allow another five months of lot merger talk with no action? None of this passes the smell test. Now, by classifying the property as nonconforming, you've offered them de facto variance as it could take years to abate these structure and use violations. This action has the appearance of giving these owners the very approval that they could not get from the commission or the neighborhood. But of course the ultimate violation of our peace and quiet would be outdoor dining and a huge bike rack moved right next door to my house. You already know from our last go around what a devastating blow this would be to my family's peace and quiet. The current bike rack next to the village Inn is city property, as is the sidewalk under it. That's the people's bike rack, and we the people don't want it taken away from us and the space given to a private business in what would appear to be reverse, or should I say, perverse eminent domain in a sweetheart deal that does not pass the smell test. First the bike rack. The drinkers currently park their bikes near the other end of the rack near their front door. Your proposed bike racks would bring them sixty 9 Planning Commission - October 20, 2016 Item No. 3a Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) feet closer to my family. Late night drunks would be getting on their bikes and yelling to their friends from 18 feet away rather than the current 80 feet away, which is bad enough. Your proposed huge commercial bike rack is the ultimate nightmare for our neighborhood. This is something you previously told me in emails would not happen. This is a residential property, already subject to abatement. This rack goes right up to their back door, which faces my house. You once told me that patrons would not be permitted in that area —that they would have to come and go through the front door. Which is it? Either way, Can you imagine the damage this would do to my children and our entire street? Village Inn drunks 18 feet from my front patio on a residential lot! Flanked by landscaping? Sounds like the perfect spot for smoke breaks and drunk conversation in earshot of my kids. For example, the city was fully aware of the fact that the owners were using the residential yard next to their business for commercial purposes for three years and did nothing to stop them. They used the residence -- both upstairs and down for restaurant purposes, disturbing the immediate neighbors on a daily and nightly basis. They used the front yard as a smoke break area for employees, who nightly ate dinner there right under my kitchen window, and left entire plates of food out all night, giving us our first roach problem in my thirty-seven years here. They even left open trash containers overflowing with uncovered food right there in the front yard! Some photos show the exact same exposed food trash piled high over the top of two open trashcans for weeks. The owners were fully aware of all this as they walked through the yard passing right by this squalor hundreds of times. These are not people to whom you should grant outdoor dining privileges at our expense this close to our homes. Another example — code enforcement was informed that they used the residential yard to sell beer and liquor to the public, even putting up a sign on the front gate that read, "Must be 21 to enter," and collecting cash out on the sidewalk. They were expressly prohibited from doing that by section 22 of their use permit issued on March 19, 2009 by your own commission. Code enforcement was twice told about this violation, and twice there was no consequence, even though Matt Cosylion assured me on the phone after the first time that it would not be permitted a second time. But these owners do as they please, and you at the city enable them with no enforcement and no consequence. Our family was twice driven off our own front patio by drunk Village Inn customers sitting on our wall. Twice! We had to cancel our guests both times. And yet like so many other violations such as this, when the commissioners asked staff to list violations at the meeting on Dec.3, 2015, these and many other violations were not mentioned. Why not? The day after the first of such violations I saw owner Dan Miller outside and told him that his customers had driven my family off our patio, and although we didn't call the police or code enforcement, I respectfully said that this should be a one- time occurrence. Instead of thanking me, he barked at me that, "I can have an event there any time I want." That's when I called code enforcement— to no avail as it turned out. 10 Planning Commission - October 20, 2016 Item No. 3a Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Code enforcement had known what they did to their yard back in 2012. The city website describes what they did to the lawn, but did anyone from code enforcement ever take a look at the place? The squalor they deliberately stuck us with has been well documented, not by the city, but by the neighbors. These owners deliberately did this to their neighbors and to the reputation of the Island and the city. That once beautiful yard was the first residence that visitors and tourists would see on their walk from the shops to the bay and ferry. It always brought a lot of nice comments from tourists, which we heard from my front patio. The turning of that yard into a place of squalor was not an accident or a property in transition. The owners dug up the lawn, uprooting hundreds of tree roots, to lay down brick for illegal outdoor dining. When several neighbors told them they couldn't do that because it was residential property, they walked away and left it just like that, a pile of dirt, broken tree roots and all. From that moment on they deliberately let everything else go completely for three years. This spiteful sequence did not did not go unnoticed by everyone on our block. They then used the yard as a dumping ground for broken restaurant equipment and trash piled five feet high. The grass on the other side became weeds and grew three feet high. This was not an oversight or an accident. For almost three years we had to look at that mess, as did tens of thousands of visitors to our special Island, besmirching the city's reputation and embarrassing our neighborhood. See photos — many photos. We told code enforcement what they had done to the yard, and yet for three more years, no one from code enforcement did a single thing about it. It was embarrassing for my family to even invite friends over with that eye sore right next door. Everyone on our block was appalled. The gardener who once took care of that property and still did some others on the block noticed the squalor and went over there and mowed the other side of the lawn and dragged out several huge bags of debris. He said he couldn't stand to see such a once beautiful place looking like that. It didn't last. The owners dumped even more junk on it and within a month the weeds were back three feet high and it was squalid again. Even today, every time I open my front door the first thing I see facing me is a large commercial sign directly facing the residential yard and my house. It's been there for four years. Your municipal code says this is an illegal window sign. I emailed code enforcement for a ruling on this sign, as it appears to be in violation of more than one code. I got no response, but many months later they put a skinny potted tree in front of the sign, which has only now become full enough to partially block the sign. Unknown if this was in response to my question, but in either case it's too little too late. We didn't even get the courtesy of a reply from the city. Last summer they placed an illegal A-frame sign for their Happy Hour on the sidewalk, which the municipal code says is a violation. The sign sometimes created a bottleneck for pedestrians and even blocked the handicapped ramp, which is another violation. See photos. I emailed code enforcement for a ruling 11 Planning Commission - October 20, 2016 Item No. 3a Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) on this sign and these violations, and again got no response whatsoever, so the sign stayed. It stayed there daily for the whole summer, and was often left out overnight — another violation. Back in November our neighborhood delegation met with you at city hall. At one point I asked you the following: We've just offered you two dozen reasons why your plan to approve giving away the city's bike rack and the unprecedented zoning change is a bad idea. So in the interest of fairness, and to better understand your thinking, could you offer us any reasons why you think it's a good idea, and why you plan to recommend it to the commission? Your answer was astonishing. You said, "No, but that's the direction the city wants to go in — more outdoor dining." But you are not "the city." The people are the city. And we the people don't want you to take away the people's bike rack to give the space to private business, while the bootlegs still stand, in a sweetheart deal that smacks of cronyism, and would surely harm us even further. Our whole block will unanimously and fiercely resist such an action. And remember, these owners actually put up signs telling bike riders that they were "on camera" and that the bike rack was for their customers only. These are the people for whom you recommended favored treatment at our expense? Can you give all of us back the hundreds of hours we've spent writing you and code enforcement, and preparing to speak in public just to protect ourselves from that which the city should never have allowed in the first place? Can you give us back the last year? Can you give us back the last four years? As many times as the city let us down, we were able to deal with the consequences until now— until these new owners. Now, all this malfeasance, all these mistakes and oversights made by the city have lowered our quality of life and reduced our property values. You have forced us to do a lot of our own homework to discover your planning commission's rules and conditions — rules that you already knew about, but did not enforce. For example, on March 19, 2009 the planning commission laid down specific rules that the Village Inn must follow as condition for approval of a requested use permit. See page 43 of those minutes. The following is a list of those conditions that the Village Inn has violated, with full knowledge of the city, and with no enforcement and no consequence. Section 17. Deliveries shall be prohibited between the hours of 10pm and 8am. This is routinely violated every week with deliveries between 5 and 6 in the morning, making incredible noise and waking us up. Many of these deliveries are made when it's still completely dark. We put up with it for four years because we didn't know it was illegal. But the city knew, and the owners knew. Most nights their loud air conditioners run all night. We can hear them roar all night in 12 Planning Commission - October 20, 2016 Item No. 3a Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) our back bedroom on the other side of the house. And for good measure, we get awakened while it's still dark before 5 and 6 a.m. deliveries at least twice a week. These large semi-trailer Sysco truck deliveries can take an hour to complete, starting with the backup beep that's impossible to sleep through. The noise is very loud as they slap carton after carton onto pallets as it echoes through the alley. The sound of the truck's steel ramp being lowered and later slammed back into place is way over the top in volume. No one could sleep through that! And on top of that, the truck's engine runs for the entire hour. And there is no going back to sleep after that kind of racket. Again, last Friday, and before 6 a.m. we were awakened by another delivery. And that same night, the band music was in our living room and we did what we usually do, retreat to the back of our house to avoid it. And again that same night, they let the air conditioners roar all night long — another violation. That's as many weeks in a row as far back as I can remember. There is never any enforcement or consequence. Now even in October we have had deliveries wake us at 4:00 a.m. Repeat— 4 a.m. Recent update: Again for one hour on May 27 starting at 5:40 a.m. Again: on Memorial Day at 6 a.m. Again: The very next day at 6 a.m., and on and on twice a week at minimum for years. And now we're in August and nothing has changed. Their August 19 delivery started at 4:50 a.m. Repeat— 4:50a.m. Outrageous! There was no going back to sleep after a full hour of that. These people do whatever they want. Section 22. No alcoholic beverages shall be consumed on any property adjacent to licensed premises under the control of the licensee. That means 123 Marine specifically. They violated that restriction with impunity from code enforcement. We told you (code enforcement) about it and you (the city) did nothing. These owners do whatever they want, and you let it happen and enable it to continue at our expense. We are human beings who deserve better than that from our city government. Section 16. The exterior of the business shall be maintained free of litter and graffiti at all times. The owner shall provide for daily removal of trash, litter debris from the premises and on all abutting sidewalks within 20 feet of the premises. We've all seen the photos, and we're not talking about isolated incidents. More photos available, right up to the present! Section 18. 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. Blatantly and grossly violated with broken restaurant equipment and furniture, etc., multiple photos spanning three years, none of it accidental. Section 23. No Happy Hour type of reduced alcoholic beverage promotion shall be allowed except when served in conjunction with food ordered for the full service menu. See photos of Happy Hour ads on illegal A-frame signs blocking sidewalk. No enforcement of sign ordinances, even after code enforcement was 13 Planning Commission - October 20, 2016 Item No. 3a Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) notified. Sign stayed all summer. Remember, these people do whatever they want. Section 27. No dancing on the premises. Routinely violated with impunity — multiple employees walking around and among the dancers and turning a blind eye. Patrons also routinely hop up on the illegally enlarged stage and dance with the band. This is when we get the screaming. Outrageous! See videos spanning four years and as recently as last week. And finally, their entertainment permit is contingent upon compliance with all conditions of their use permit as specifically stated in section 3 of that entertainment permit. As you can see they are continually and blatantly in violation of sections 16, 17, 18, 22, 23,and 27 of their use permit. As I read municipal code 5.28.060 section C, each one of these violations could or should be cause for the city manager to revoke their entertainment permit. But this is not just about their use permit or their entertainment permit, it's about our plea to you to harm us no further. We warned code enforcement back in 2012 what kind of new owners they were dealing with here, based on what they had already done at the outset. Code enforcement had all the heads up they should have needed to prevent exactly what we predicted and what has happened to our neighborhood. Just ask any of the neighbors on our street. As we discover the litany of tales regarding what code enforcement has chosen to enforce against the average citizen, it amazes us how impotent they seem to be when it comes to the Village Inn. The rules that the rest of us follow just don't seem to apply to these people. That's your fault as much as theirs. You have allowed all this to occur. In 2012 when they stripped the place bare and illegally knocked down the dividing wall that acted as the back of the stage and the sound buffer between the speakers and our houses, your own building inspector signed off on it. Without that wall and the sound absorbing carpet and large booths (that they dumped in the front yard next to my house for months) the noise was unbearable. We told code enforcement and nothing happened. After three years of torment for my family, I finally resorted to the freedom of information act and discovered that the removal of that sound barrier and moving the stage and speakers closer to our houses was a clear violation of their entertainment permit. Only then, and only after reporting this discovery to Cassi Palmer from code enforcement was any action taken. But even after that, they ignored your letter of correction, and here we are a full year and a half later with band music still in my house. This is completely unacceptable! We deserve a lot better than this. Can you give us back this past year that you allowed this to continue, even after your letter of correction, a fact that actually made our stress and frustration 14 Planning Commission - October 20, 2016 Item No. 3a Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) worse? And then add the past four years that you have known about this and done nothing. My family begged and pleaded with them for three years to contain their band music and keep it out of our houses. You ordered them to do the same, and a fourth year has come and gone without any enforcement from you. Can you imagine stress and disappointment this has created among those you serve? The planning commission rejected their request for you to turn over the bike rack space to them. So now they will try again. They want some- thing from you so they will tell you they are working on the noise problem that they themselves caused by illegally knocking down the sound barrier and moving their stage and speakers, and stripping their place bare. They should therefore get no credit for now claiming an attempted correction of those very violations, which they themselves caused. If they were now to say that they have gone to great lengths to fix their sound problem, would that not be all the proof needed that our complaints were justified? If it took a lot of money and effort to lower the noise escaping their building, and we can still hear it, does that not prove what we've been trying to tell you, albeit in vain? Back in 2012 when these owners illegally changed their building and allowed their band music to escape and penetrate our houses, we begged them to do something to correct the problem. Owner Charlie Kintsler phoned and chastised me for not having double panes in some of my windows, as if was my own fault that his sound was penetrating our home. I reminded him that most people here keep their windows open in warm weather, and that it was his job to contain his band music at his location. He scoffed at this, blaming us for his sound being heard in our own house, telling me I wasn't doing my part in cooperating with them. He also told me that they were the first owners of the Village Inn to set up a line of communication for when the music was too loud. I reminded him that up until now we didn't need a line of communication — because the sound barrier and booths and carpet had kept the sound where it belonged, and not in our houses. He countered that by telling me that it was my own choice to buy a house next to a bar. I corrected him again, reminding him that he owned a restaurant, not a bar, and that my house was two- doors away, not next door. They asked to meet with us to discuss it. They told us that they consulted a "sound engineer" who told them that it would be impossible to contain the music inside their building. No sentence followed that amazing statement. That was it. We were speechless. They were telling us that we would have to live with this new reality. What was possible before they arrived (no noise inside our home) was not possible now — as if the laws of physics had changed. Owner Charlie Kinstler also told us to our faces that the band music heard in our house could be coming through the knotholes in our fence, which by the way is not even as high 15 Planning Commission - October 20, 2016 Item No. 3a Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) as our windows. My wife and I held our composure and kept a straight face because we were looking for real solutions. We suggested sound curtains to absorb some of the noise. They bought some curtains and texted us that we should pay for them. But they have refused to deploy the curtains behind the stage where it would have done the most good. At that same meeting, Charlie Kinstler told my wife and me that if the music was really too loud for us, he could always cut down the tree that shades both our properties and build a high block wall in front of our front door, which faces that direction. He knew how much that tree meant to us and everyone on our block. Based on what they had already done, we took these threats seriously. Shortly after that meeting, the other owner, Dan Miller came to our house and asked us if we would rather deal with him or with Mr. Kinstler? Some choice. He then convinced us not to call the police when the music got too loud, but to text him instead. Grasping at any solution by this point, we agreed. But as it turned out, it was a huge mistake on our part. We'd been snookered, and after two years of futile texting and trying in every way to give him the benefit of the doubt, it became obvious that we'd been duped. (See my wife's speech to the planning commission on Dec. 3, 2015) We can't count the number of times we complained to owner Dan Miller that the music was so loud it could be heard even in our back bedroom on the far side of our house and he would reply in no uncertain terms that he was "within code." That put us back on our heels because back then we didn't know the codes. Only two possibilities exist. Either Mr. Miller was lying about being within code, or the code is useless and we have the city to blame for band music tormenting my family for four years. In your staff report for the commission meeting on Dec. 3, 2015, you and code enforcement, and the police department set certain conditions that should be met before approval. One of those conditions of approval is the requirement that alcohol sales shall not exceed food sales. That is not the case now. There had not even been an audit to determine what the true ratio is, and yet without that ratio being met, and without an audit, you recommended that the city approve the outdoor dining. And now this year, their ratio of food to alcohol ratio has gotten even worse. Has there been an an audit? And you are still recommending a yes vote to the commission. Remember this was a police condition of approval — not a suggestion. And what would the city do if this ratio stayed the same a year after the outdoor dining has been constructed. Would you then force them to reverse the construction? I think not. This is not good planning. The camel's nose would be under the tent, and you would be powerless to reverse it. This is not to say that we would accept outdoor dining at such a saloon even if they did get over the 50 percent mark. Their type of loud sports bar creates unacceptable noise — even during the day, and floor to ceiling glass doors spanning the length of the building would make that worse, to say nothing about the band music at night. 16 Planning Commission - October 20, 2016 Item No. 3a Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) And if you in the city are concerned about our reputation as a "green" city, the last thing you want -- is to be seen removing the peoples' bike rack to benefit a private business. We need more bike racks, not merely a replacement on a residential yard next to someone's home. If the city is concerned about tourism, you in code enforcement should have thought about that back in 2012 when we told you what they were doing to the residential yard at 123 Marine. People come from all over the world to walk around Balboa Island, and you allowed these owners to ruin the very first yard seen by tourists into something that looked like tobacco road. That's what these owners did to the Island, right on the street that the whole world visits. See photos. You have robbed my family of so much of the happiness that we once enjoyed living in such a special place as Balboa Island, on what was once the best block here. Please don't advocate hurting us any further. That's the whole reason for writing to you. Our whole block is united in opposition to the proposed outdoor dining and the removal of the bike rack. You've seen what leaving even one window open can do to exacerbate the annoyance factor in the immediate neighborhood. You can imagine what the annoyance would be if you allowed floor to ceiling open doors with a sports bar as proposed. The annoyance factor of the yelling and screaming would make city noise ordinances seem useless and subject to ridicule. What would you do then? How would you defend the city's decision when that happens and there is a neighborhood uprising? You can't just tell a whole block of people that they can't be annoyed because the noise does not exceed your ordinances. That would not be accepted. The annoyance factor would trump everything. You would have a whole block of angry people to deal with. You would be stuck with your bad decision, and it would be too late to reverse the construction. And now because they want something from you, they will try to clean up their act. We have even experienced some yard cleanup. That was strictly a PR move for your benefit, not ours. They never cared how bad piles of junk looked for the neighborhood, but it took a PR consultant to tell them to do what should be expected of any ordinary neighbor. That's just one small example, of course. See photos of years of deliberate squalor, which embarrassed the Island and the city. Now we see all this last minute property improvement for your benefit, not the neighborhood's. Our wonderful block of families is not an amusement park or a Monopoly Board to be played with and manipulated by the city for the financial gain of one chosen business favored above others. This is where we live. I'm raising my family here. We're human beings who deserve peace and quiet in our own homes. Lest anyone in city government feel sorry for these owners and feel a need to "figure out a way to help them" as one commissioner said on December 3, 2015, 17 Planning Commission - October 20, 2016 Item No. 3a Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) remember what you have already given them at our expense — a year and a half of free stalling time, wherein they were able to ignore your order to correct the violations that still exist, allowing them to harm us further. They stalled you for six months before applying for an outdoor dining permit. When that was turned down three months later, they waited past another few meetings and asked the commission to table their request for mixed use. They then waited another two months before applying for a lot merger. Since that application, the Zoning Administrator has held 15 meetings and we have no explanation for that delay. You've given them a full year and a half free pass without the city lifting a finger to enforce your own rules. This inaction increases their opportunity to claim status quo for the very construction and deconstruction that is was and is illegal. And now after breaking so many rules, ignoring your order to correct, having been rejected by the planning commission and everyone on our block, and knowing that a lot merger would never fly, and having been given a full year and a half free pass to continue harming us, they have been given another gift that they could never have earned otherwise. On August 30, 2016 a director's determination classified these illegal uses and encroachment structures as nonconforming, along with an immediate application for an extension of the abatement period. This maneuver does not pass the smell test. This is a year and a half after the city had ordered this business to bring their structures up to code. Why was this not done at that time on March 30, 2015? Or better yet, why was this not done fifteen years ago when the city knew about these violations and actually signed off on them. And since it could take years to abate this nonconformance, this amounts to a de facto variance of this property. So just like that, a city employee can wave a magic wand and help a rogue business ignore and defy your order of correction, and apply for the special privilege of outdoor dining "separately." Not so fast! If the hearing officer should grant an extension of the abatement period under these circumstances it would add fuel to our point that something smells bad here. This would obviously increase the city's exposure to additional liability for the harm they have caused my family. An abatement extension of illegal use of such magnitude amounts to a de facto variance, which the city charter prohibits for use. This could be one of those cases where a conflict would exist between two city departments, in which case the charter would prevail. Back in November of last year, our neighborhood delegation met with you regarding our complaints about the Village Inn and the band noise that penetrates our homes. We asked why the city's order for them to correct the illegal deconstruction of their stage and sound barrier was still not corrected after seven months. Your answer was that it would make little sense to insist that they obey that order since if they prevailed in their quest for outdoor dining, that point would be moot. Absurd! 18 Planning Commission - October 20, 2016 Item No. 3a Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) First, their submitted plans for outdoor dining placed the stage and speakers in an even worse position, aiming the speakers directly at our houses. Second, and more important, the application for those plans were tabled and later withdrawn. When that happened you should have notified code enforcement and the city should have forced compliance. That did not happen and we now have endured an additional year and a half of them ignoring your order to correct, wherein you have done nothing to protect us from them. That makes a total of four years that the city has knowingly allowed them to harm my family inside our own home. Remember, the city signed off on this illegal deconstruction. By the way, if the Village Inn were ever to succeed in actually eliminating their band music from penetrating our houses it would be proof positive that it was indeed possible all along, just as I had told them and you it was before they came here. And it would be proof that your neglect and inaction regarding our pleading with you for help for four years —was ignored to the point of collective malfeasance on the part of the city. And it would also be proof that they could have stopped the torment of my family at any time in the past four years, but chose not to do so until they wanted something from the city. But as you can see, that has not happened. Because of the city's enabling, their nightclub band music still penetrates our home. See multiple videos spanning four years. And now for the ultimate nightmare for my family and our neighborhood! As part of their current application for outdoor dining, the city wants to help them by removing the city owned bike rack from the side of their building and giving them the city sidewalk space to expand their building for outdoor dining. And worst of all, they plan to place a huge, even bigger 420 square foot bike rack in the residential yard next to my house. That's bigger than my two-car garage! Right next door! The Village Inn drinkers currently park their bikes closest to their front door, 90 feet from my house, which is noisy enough at closing time. You now want to move them 70 feet closer to my doorstep? Late night drunks 20 feet from my front door— on a residential lot! Sounds like the perfect spot for smoke breaks and drunk conversation in earshot of my children. This is outrageous! Haven't you allowed enough to be done to us already? We are urging you not to damage us any more than you have. Before hurting my family even further, think of my children, check your right vs. wrong compass, and check with the city attorney, and then decide if it's worth it to the city to continue acting as an advocate for additional damage to our neighborhood. My neighbors and I implore you to consider our feelings, our children, our property values, and our quality of life before continuing as an advocate for that which will damage us further. 19 Planning Commission - October 20, 2016 Item No. 3b Additional Materials Received PORr The Village Inn Outdoor Dining Use Permit (PA2015-016) y0 e� COMMUNITY DEVEL01-- rdf F f n 100 Civic Center Drive V )iEFj Z Newport Beach,California 92660 `p. 949 644-3200 Gq<UFOlk newportheachca.gov/communitydevelopment Memorandum To: Planning Commissioners From: Brenda Wisneski, Deputy Community Development Department Date: October 17, 2016 Re: Village Inn — Police Department Memo The attached Police Department memo provides an up to date listing of calls for service made to and around the Village Inn at 127 Marine Avenue. Community Development Planning Commission - October 20, 2016 Item No. 3b Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) NEWPORT BEACH POLICE DEPARTMENT DETECTIVE DIVISION 43 MEMORANDUM TO: Brenda Wisneski, Deputy Community Development Director FROM: Wendy Joe, Police Civilian Investigator DATE: October 17, 2016 SUBJECT: The Village Inn Outdoor Dining and Land Use Amendments 127 Marine Avenue Use Permit No. UP2015-006 (PA2015-016) Below is a list of calls for service recorded since the Police Department's previous memo dated April 16, 2016. Patrol officers have responded to 7 calls for service to and around the Village Inn at 127 Marine Avenue. One of those calls was regarding loud music or excessive noise which was quiet when the officer arrived. Listed below are the dates and dispositions of the calls: • 04/26/2016, 10:31 p.m. — Medical Aid (Fire only, PD not required) • 05/03/2016, 9:58 p.m. — Loud Music complaint from a neighbor; was quiet upon PD arrival • 05/10/2016, 7:22 p.m. — Medical Aid (Fire only, PD not required) • 06/25/2016, 8:57 a.m. —Stolen vehicle; unfounded • 07/19/2016, 11:00 p.m. — DUI driver near the Village Inn • 08/20/2016, 10:48 a.m. — Stolen Bicycle from the bike racks, report taken • 09/28/2016, 9:14 p.m. — Officer flagged down near the Village Inn; however the call did not involve the location. The Police Department's request for conditions remains consistent with the previous memorandums dated November 4, 2015 and April 26, 2016. If you have any questions as to the cont nt of this memorandum, please contact me at (949)644-3705 or wjoe@nbpd.org. Wendy \oe Police Ci\lian Investigator, Special Investigations Planning Commission - October 20, 2016 �WpItem No. 3c Additional Materials Received The Village Inn OutdddfUhW�%Mt Permit (PA2015-016) } wr COMMUNITY DEVELOPMENT DEPARTMENT F f n 100 Civic Center Drive Newport Beach,California 92660 949 644-3200 C,�/FOP-NSP newportbeachca.gov/community development Memorandum To: Brenda Wisneski, Deputy Community Develeopment Director From: Cassi Palmer, Senior Code Enforcement Officer Date: October 17, 2016 Re: 127 Marine Ave. Code Enforcement has received the following complaints since December 01, 2013: • 9/1/2016: Complaint that construction and painting have occurred over the last month. o Findings: No further construction at this time, paint performed and allowed. • 5/23/2016: Complaint regarding unpermitted advertised Beer garden for 6/5/2016 event. o Verbal warning requiring special event permit if outdoor event was to occur. o Site investigation on 6/5/2016 demonstrated no outdoor event occurred. • 3/16/2016: Complaint regarding noise from The Village Inn. o Request for Police Patrol evening check: 3/19/2016. PD reported observations of no dancing. Music was not audible from across building with the exception of when the front door was opened for patron ingress/egress. • 5/30/2015: Complaint regarding property maintenance of the adjacent property(125 Marine). 0 6/2/2016: Meeting with owner at site. Verbal warning to remove unnecessary items from public view(newspaper, ladder, etc.). 0 7/1/2015: Property maintenance reported as improved (newspapers, ladders, etc.). • 2/19/2015: Complaint regarding: Unpermitted construction, dancing, property maintenance, use of adjacent property, and audible music from interior. o Correction letter issued on March 20, 2015. o Notice of Violation issued on June 9, 2015. • 9/8/2014: Complaint regarding the adjacent property(125) as an outdoor patio without approval from the City of Newport Beach. Community Development Depa Planning Commission - October 20, 2016 Item No. 3c Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) o No violation observed. Met with PO regarding use of property for special events. • 7/19/2014: Complaint of loud music on Saturday nights. o Bar check on 7/19/2014 revealed low volume music; not excessive. RP updated. • 7/17/2014: Complaint regarding "blatant code violations, etc." o No further information was provided regarding alleged violations. If you have any questions on this memo, please do not hesitate to contact me. Cassi Palmer Senior Code Enforcement Officer Community Development Department Tmplt:-02/05/15 Planning Commission - October 20, 2016 Item No. 3d Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) From: Mike Sullivan <sullivanphoto@roadrunner.com> Sent: Tuesday, October 18, 2016 12:16 PM To: Wisneski, Brenda Cc: Kramer, Kory; Dunlap, Bill; Lawler, Ray,Zak, Peter; Koetting, Peter; Hillgren, Bradley; Biddle,Jennifer; Weigand, Erik; Campagnolo, Daniel; Peter Bergman; Suzanne Savary Subject: Re:Village Inn Violations Follow Up Flag: Follow up Flag Status: Flagged Thank you Brenda—True, many of"these events were not reported to the city at the time they occurred." I certainly hope you don't mean to imply that they did not occur. That's what video accomplishes— an unambiguous look at the truth, time stamped and dated. Video was our last resort, having had no response or help from the city when we did report violations —which is now also part of the record. The videos you watched yesterday were made available to the city last week. If you need more time, or wish to view more of them, I am available. Thanks, Mike On Oct 18, 2016, at 11:56 AM, Wisneski, Brenda<BWisneski(anewportbeachca.gov>wrote: Hi Mike, First, since you included the Planning Commissioners in this correspondence, I will include this email string in the public record. Please let me know if this is not your intent and eliminate their addresses from future emails. The staff report and subsequent information provided by the Police Department and Code Enforcement document all calls for service and complaints received related to Village Inn within the last several years. You're correspondence includes a detailed list of events that will be considered by the Planning Commission and is part of the public record. I also appreciated viewing the videos you recorded. It should be noted that these events were not reported to the City at the time they occurred and the videos were presented only yesterday. My presentation will detail the noise standards and conditions that the restaurant must adhere to in the context of what has been presented. Sincerely, Brenda Wisneski From: Mike Sullivan fmailto:sullivanphoto@roadrunner.coml Sent: Tuesday, October 18, 2016 10:30 AM To: Wisneski, Brenda; Kramer, Kory; Dunlap, Bill; Lawler, Ray; Zak, Peter; Koetting, Peter; Hillgren, Bradley; Biddle, Jennifer; Weigand, Erik Cc: Campagnolo, Daniel; Peter Bergman; Suzanne Savary Subject: Village Inn Violations Dear Brenda— t Planning Commission - October 20, 2016 Item No. 3d Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Last year we learned that at a planning commission hearing it is customary for the commissioners to ask staff for a list of violations. Back then we were disappointed that many of the obvious violations, some of which you already had knowledge of were not mentioned. This year I have given you a list of use code violations, entertainment permit violations, and municipal codes violations, citing each code section in pages 15 and 16 and throughout the document submitted to the city manager and members of the planning commission. You have personally witnessed over a dozen video recordings in company of the assistant city manager showing recent violations in all three categories. Two code enforcement officers are also personally aware of several of these same code violations including photos. My question is this: On Thursday night when staff is asked the customary question about violations will you be reading the complete list? Our team is given only three minutes each to speak and we would not want to waste any of that precious time doing what we hope you will do. Thank you, Mike Sullivan 2 Planning Commission - October 20, 2016 6W PO Item No. 3e Additional Materials Received The Village Inn OutdcldMhWTM Pbrmit (PA2015-016) �n COMMUNITY DEVELOPpr SOD Civic Center Drive Newport Beach,California 92660 Gq `p. 949 644-3200<UFolk newportheachca.gov/communitydevelopment Memorandum To: Planning Commissioners From: Brenda Wisneski Date: October 19, 2016 Re: Item # 3: Village Inn - Existing Permits You have received correspondences referring to existing permits and regulations which affect Village Inn. To aid in your review, I have attached the Live Entertainment Permit (2012), Use Permit (2009) and Municipal Code Section 5.28. Community Development Planning Commission - October 20, 2016 PO�T Item No. 3e Additional Materials Received o �� CITVe(� + PblRT BEAC�iA2015 016) U � Z ADMINISTRATIVE SERVICES qtRevenue Division r Fo a��P CHARLES-KIN TLER July 3, 2012 CVILLAGE INN E NEWPORT BEACH,CA 92662 PERMIT TO CONDUCT LIVE ENTERTAINMENT The City of Newport Beach does hereby authorize live entertainment activities to be conducted at the above indicated facility. This permit is issued to the entity listed above, and is not transferable to any other entity. 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, the Use Permit associated with this property and the following conditions for operation 1. The permittee must meet the conditions for issuance of the permit. 2. The establishment shall be operated in a legal and orderly manner. 3. Permittee must comply with all conditions of the Use Permit. 4. Live entertainment shall comply with the requirements of Municipal Code Chapter 5.28. Compliance with Section 5.28.040(B)(3) is reasonably met by not exceeding the maximum levels set forth in condition 5. 5. Live entertainment shall consist of no more than five musicians and/or vocalists using amplified instruments and microphones. 6. The live entertainment shall be confined to the interior of the building with performances located on the stage as shown on the plans submitted with the application. 7. Music or noise from the establishment for which the permit was Issued shall not interfere with the peace and quiet of the neighborhood. 8. Noise levels from live entertainment shall be controlled so as not to exceed 60 dB(A) on the public sidewalk adjacent to the exterior doors and 50 dB(A) at the centerline of the public alley between the Village 1rm and 1305 Park Avenue while the doors are closed. Noise spikes up to 80 db(A) on the public sidewalk adjacent to the exterior doors and up to 70 db(A) at the centerline of the public alley between the Village Inn and 1305 Park Avenue are permitted during patron ingress and egress. 9. All exterior doors and windows shall remain closed during live entertainment activities except to allow the ingress and egress of patrons. 10. After 8:00 p.m.,the second set of doors to the west of the main entrance doors on Park Avenue shall be used for emergency use only. 11. There shall be no dancing allowed on the premises. 12. Every place of entertainment shall have a manager on the premises at all times when entertainment is performed. 13. 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, shall not be convicted of a criminal offense involving moral turpitude. Approved by: Date: -7 a Revenue Manag r cc: Code Enforcement Police Department Planning Department 3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92658-8915 Telephone: (949) 644-3141 • Fax: (949) 644-3073 • www.newportbeachca.gov, Planning Commission - October 20, 2016 Item No. 3e Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) RESOLUTION NO. 1782 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH APPROVING USE PERMIT NO. UP2009-002 TO ALLOW A MAJOR CHANGE IN OPERATIONAL CHARACTERISTICS OF AN EXISTING RESTAURANT AND THE OPERATION OF AN ALCOHOLIC BEVERAGE OUTLET LOCATED AT 127 MARINE AVE (PA 2009-014) WHEREAS, an application was filed by Balboa Island Village Inn, Inc., with respect to property located at 127 Marine Avenue, and legally described as Balboa Island Section 4, Lot 15, requesting approval of a use permit; and WHEREAS, the subject property is located within the Retail and Service Commercial District with a Residential Overlay and is subject to the requirements of Chapters 20.15, 20.52, and 20.82 of the Zoning Code which require a use permit for a major change in the operational characteristics of an existing eating and drinking establishment; and WHEREAS, a substantial change in the character of operation of an alcoholic beverage outlet requires a use permit under the provisions of Chapter 20.89 of the Municipal Code (Alcoholic Beverage Outlets); and WHEREAS, a use permit for an increase in the number of seats in the bar, which constitutes a major change in the operational characteristics of an existing eating and drinking establishment, has been prepared and approved in accordance with Section 20.91.035 of the Newport Beach Municipal Code based on the following findings and facts in support of such findings: Finding: That the proposed location of the use is in accord with the objectives of this code and the purposes of the district in which the site is located. Facts in Support of Finding: • The project is located in the Retail and Service Commercial (RSC) District with a Residential Overlay. The residential overlay allows all of the permitted uses of the base district with residential allowed above the first floor. The purpose of the RSC District is to provide areas which are predominantly retail in character but which allow some service office uses. The existing restaurant with alcohol sales is a retail sales use which serves residents and visitors and, therefore, is consistent with the purposes of the RSC District. • Subject to the approval of a use permit by the Planning Commission, a restaurant use with alcoholic beverage service is permitted within this district. Use permits enable the City to control certain uses which could have detrimental effects if not compatible with uses on adjoining properties and in the surrounding area. The Village Inn restaurant use with alcohol sales is compatible with the uses in this district, including the other restaurants, ice cream and frozen yogurt shops, clothing boutiques, hair salons, and coffee shops along Marine Avenue. The proposed application does not present any conflicts with the purpose and intent of this district. Planning Commission - October 20, 2016 Plannin6EU%Mo1A0VK WJiWJg6als Received The Village Inn Outdoor Dining Use Penb6P 5-016) Finding: That the proposed location of the Use Permit and the proposed conditions under which it would be operated or maintained will be consistent with the General Plan and the purpose of the district in which the site is located; will not be detrimental to the public health, safety, peace, morals, comfort, or welfare of persons residing or working in or adjacent to the neighborhood of such use; and will not be detrimental to the properties or improvements in the vicinity or to the general welfare of the city. Facts in Support of Finding: • The project site is designated as Mixed Use Water Related (MU-W2) by the Land Use Element of the General Plan. The proposed project is consistent with the MU-W2 land use category, which is intended to provide for marine-related uses including retail, restaurants, and visitor-serving uses with residential on the upper floors. • The proposed hours of operation, Sunday through Thursday from 9:00 a.m. to 12:00 a,m. and Friday and Saturday from 9:00 a.m. to 2:00 a.m, will not significantly change characteristics of the existing commercial area, and will a provide a benefit to customers by serving breakfast. • The Newport Beach Police Department has reviewed the project, has no objections to the basic operations as described by the applicant, and considers the Village Inn to be a community asset. • If the Use Permit is approved, the conditions imposed on the Village Inn will reduce any possible detriment to the community by ensuring continued consistency with the intent and purpose of Chapters 20.82 and 20.89. Finding: That the proposed use will comply with the provisions of this code, including any specific condition required for the proposed use in the district in which it would be located. Facts in Support of Finding: • Eating and drinking establishments are subject to the requirements of Chapter 20.82 of the Municipal Code. Pursuant to this Chapter, a use permit is required for a major change in operational characteristics, including the increase in the number of seats of a bar by more than 15 percent. The operator of the Balboa Island Village Inn, Inc. has applied for a building permit to remove dining room seating in order to expand the bar area. This proposed construction will reduce the net public area because a portion of the customer service area will be converted to an area used by employees. In addition, the number of seats at tables and booths will be reduced by 20 and the number of bar seats increased by 18. • Chapter 20.62 (Nonconforming Structures and Uses) of the Municipal Code allows for interior alterations to be made to structures that are nonconforming due to deficient parking. Approval of the Use Permit will not intensify the existing use because the net public area and number of seats will be reduced. Because the application only proposes Planning Commission - October 20, 2016 Plannin En�,oiis� Ai�pa8� iW� 'als Received The Village Inn utdoor Dining Use Perf 4P 5-016) interior alterations and does not intensify the use, the Use Permit may be approved without providing the parking that would otherwise be required. Further, the customers of the Village Inn often live on Balboa island and walk to this destination. • The project has been conditioned to comply with the development and operational regulations pursuant to Section 20.89.050 of the Municipal Code as they relate to the operation of the proposed project. These conditions include restrictions on the hours of operation, and prohibition of "happy hour" reduced alcohol beverage prices that would promote sale of such beverages except when served in conjunction with food ordered for the full service menu. Employees serving alcoholic beverages will receive training in responsible methods and skills for serving and selling alcoholic beverages, the exterior of the Village Inn will be maintained free of litter and graffiti at all times, and the owner or operator will provide for daily removal of trash, litter, and debris from the premises and on all abutting sidewalks within 20 feet of the premises. WHEREAS, a public hearing was held on March 19, 2009, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting; and WHEREAS, the project qualifies for an exemption from environmental review pursuant to Section 15301 (Class 1 Existing Facilities) of the Implementing Guidelines of the California Environmental Quality Act (CEQA), which exempts the operation of existing facilities involving negligible expansion of use; and NOW, THEREFORE, BE IT RESOLVED: Section 1. The Planning Commission of the City of Newport Beach hereby approves Use Permit No. UP2009-002, subject to the Conditions set forth in Exhibit"A". Section 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. Planning Commission - October 20, 2016 Plannir> b�4rii ����tfi��als Received The Village Inn OOutdoor Dining Use PegAbkP$gM-016) PASSED, APPROVED AND ADOPTED THIS 19th DAY OF MARCH 2009. AYES:_Eaton, Unsworth, Hawkins, Peotter Toerge and Hillgren NOES: McDaniel BY: Sco Pe er, Chairman BY: Barry Eaf9 , Secretary Planning Commission - October 20, 2016 Plan nin"bN%ikoW04980toRtIq8aIs Received The Village Inn Outdoor Dining Use PeNW bA6'V5-016) EXHIBIT "A" CONDITIONS OF APPROVAL PROJECT SPECIFIC CONDITIONS ARE IN ITALICS 1. The development shall be in substantial conformance with the approved site plan and floor plans, except as modified by applicable conditions of approval. 2. All proposed signs or displays shall be in conformance with Chapter 20.67 of the Newport Beach Municipal Code. 3. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 4. The applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this Use Permit. 5. 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. 6. This Use Permit may be modified or revoked by the City Council or Planning Commission should they determine that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 7. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to this Use Permit or the processing of a new Use Permit. 8. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. 9. Prior to the issuance of a building permit, the applicant shall pay any unpaid administrative costs associated with the processing of this application to the Planning Department. 10. Should the business or 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. 11. Construction activities shall comply with Section 10.28.040 of the Newport Beach Municipal Code, which restricts hours of noise-generating construction activities that Planning Commission - October 20, 2016 Plannirl"bNPng@i&Og91 WttdRtiqrdals Received The Village Inn Outdoor Dining Use PeT%WbfAgW-016) produce noise to between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday and 8:00 a.m. and 6:00 p.m. on Saturday. Noise-generating construction activities are not allowed on Sundays or Holidays. 12. No outside paging system shall be utilized in conjunction with this establishment. 13. All trash shall be stored within the building or within dumpsters stored in the trash enclosure (three walls and a self-latching gate) or otherwise screened from view of neighboring properties, except when placed for pick-up by refuse collection agencies. The trash enclosure shall have a decorative solid roof for aesthetic and screening purposes. 14. The applicant shall ensure that the trash dumpsters and/or receptacles are maintained to control odors. This may include the provision of either fully self-contained dumpsters or periodic steam cleaning of the dumpsters, if deemed necessary by the Planning Department. Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14, including all future amendments (including Water Quality related requirements). 15. 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. 16. 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. 17. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10:00 p.m. and 8:00 a.m., daily, unless otherwise approved by the Planning Director, and may require an amendment to this Use Permit. 18. 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. 19. A Special Event 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. 20. The applicant is required to obtain all applicable permits from the City Building and Fire Departments. The construction plans must comply with the most recent, City-adopted version of the California Building Code. The construction plans must meet all applicable State Disabilities Access requirements. Approval from the Orange County Health Department is required prior to the issuance of a building permit. Planning Commission - October 20, 2016 Plannin"bNpniggi&og981]ttMtN8als Received The Village Inn Outdoor Dining Use Pernj.hg:1-W5-016) 21. Approval does not permit the premises to operate as a bar, tavern, cocktail lounge, or nightclub as defined by the Municipal Code, unless the Planning Commission first approves a use permit. 22. No alcoholic beverages shall be consumed on any property adjacent to licensed premises under the control of the licensee. 23. No "happy hour" type of reduced price alcoholic beverage promotion shall be allowed except when served in conjunction with food ordered for the full service menu. 24. Petitioner shall not share any profits or pay any percentage or commission to a promoter or any other person based upon monies collected as a door charge, cover charge, or any other form of admission charge, including minimum drink orders or the sale of drinks. 25. All owners, managers, and employees selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for serving and 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 effective date of this use permit. 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 26. There shall be no on-site radio, television, video, film, or other electronic media broadcast, including recordings to be broadcasted at a later time, which include the service of alcoholic beverages, without first obtaining an approved Special Event Permit issued by the City of Newport Beach. 27. There shall be no dancing allowed on the premises. 28. Upon request of the Police Department, or with a change or transfer of the Alcoholic Beverage Control license, a security plan shall be submitted to the Police Department for review and approval. 29. The hours of operation shall be limited to between 7:00 a.m. and midnight, daily. 30. The Use Permit shall be reviewed by the Planning Commission one year after the conclusion of the appeal period. The applicant shall make a good faith effort towards a goal of increasing the percentage of food sales to 40 percent or more by the one-year review period. 31. After 8:00 p.m., the second set of doors to the west of the main entrance doors on Park Avenue shall be used for emergency use only. Planning Commission - October 20, 2016 Item No. 3e Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) CITY OF NEWPORT BEACH Planning Commission Minutes March 19, 2009 Regular Meeting - 6:30 p.m. ROLL CALL Commissioners Eaton, Unsworth, Hawkins, Peotter, McDaniel, Toerge, and Hillg rep—all present. 'E. STAFF PRESENT: David Lepo, Planning Director Patrick Afford, Plahl ing Manager Aaron Harp, Assistarrt Crity Attorney Fern Nueno, Assistant planner Jaime Murillo, Associate Planner Melinda Whelan, Assistant Planner Ginger Varin, Administrative Assistant PUBLIC COMMENTS: PUBLIC COMMENTS None ''`_- „t POSTING OF THE AGENDA: POSTING OF THE AGENDA The Planning Commission Agenda was posted on March ,3 2009. k, 1. HEARING ITEMS �4 l� SUBJECT: MINUTES of the regular meeting of February 19, 2009. °_ ITEM NO. 1 Motion was made by Commissioner Hawkins and seconded b X" Approved Commissioner Hillgren to approve the minutes as written. Ayes: Eaton, Unsworth, Hawkins, Peotter, Toerge and Hillgren Noes: None Abstain: McDaniel SUBJECT: Balboa Island Village Inn (PA2009-014) ITEM NO. 2 127 Marine Avenue PA2009-014 A use permit application for an existing full service restaurant to allow the Approved conversion of dining room seating into bar seating, and for the operation of an existing alcoholic beverage outlet. Planning Commission - October 20, 2016 Item No. 3e Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Home t ] Chapter 5.28 LIVE ENTERTAINMENT ESTABLISHMENTS* Sections: 5.28.010 Definitions. 5.28.020 Permit Required. 5.28.030 Application for Permit. 5.28.035 Application Requirements. 5.28.040 Issuance of Permit—Investigation. 5.28.041 Additional Regulations. 5.28.050 Permits Nontransferable. 5.28.060 Revocation of Permit. 5.28.070 Appeals and Calls for Review. 5.28.090 Exceptions. 5.28.100 Permits and Fees Not Exclusive. 5.28.110 Public Nuisance. " Prior history: 1949 Code, §§4400-4409; Ord. 1054, 1170, 1185, 1568, 1620, 1676, 1738, 89-1, 89-6 and 94-7. 5.28.010 Definitions.0 SHARE ©v®...1 ..........................................................................................................................................:............................................................................................................................................................................................ Certain words or phrases used in this chapter are defined as follows: "City Manager" means the City Manager for the City of Newport Beach or his or her designee. "Entertainment"means any act, play, burlesque show, revue, pantomime, cabaret,fashion or style show, scene, dance, song, song and dance act, or instrumental music participated in by one or more employees, guests, customers or any other person or persons. 1. The following is included in the term"entertainment':The presence of any performer, dancer, employee, agent, model or other person, collectively and individually referred to as ..entertainer,"in any place of entertainment who engages in any specified sexual activity(as that term is defined in Section 5.96.010 of this Code) not otherwise prohibited by local, State or Federal law, or who exposes any specified anatomical part(as that term is defined in Section Planning Commission - October 20, 2016 Item No. 3e Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) 5.96.010)not otherwise prohibited by local, State or Federal law, or who performs in attire commonly referred to as pasties or a G-string, or any other opaque covering which does not expose the areola or nipples of the female breast, and while covering the natal cleft and pubic area covers less than one inch on either side of the entire length of the natal cleft and two inches across the pubic area. "Individual viewing areas"means viewing areas such as booths, cubicles, rooms or stalls where live entertainment is performed and which are less than one hundred fifty(150)square feet of floor space. "Owner'or"permit holder"or"permittee" means any of the following: 1. A sole proprietor or individual(s)who own or operate a place of entertainment; 2. All general partners of a partnership which owns or operates a place of entertainment; 3. All persons who hold a controlling interest in a corporation, or other limited liability entity which owns or operates a place of entertainment. "Permit"means any permit issued pursuant to this chapter. "Place of entertainment" means any business establishment or concern open to members of the public,with or without charge, in which entertainment is offered or performed. (Ord. 99-2 § 1, 1999: Ord. 97-12§ 1, 1997: Ord. 96-5§ 1, 1996: Ord. 95-17 § 2(part), 1995) 5.28.020 Permit I Requirec!A sHA_RE Illlr'1�... No person or entity shall operate, or engage in, any business or commercial enterprise which provides entertainment in a restaurant, cafe, night club, bar, coffee house, or other place of entertainment, unless such person has first obtained a permit pursuant to this chapter. (Ord. 95-17§2 (part), 1995) 5.28.030 Application for Permit Ip SHARE Il...) Applications for permits shall be filed with the City Manager on forms supplied by the City, and shall be accompanied by a fee established by resolution of the City Council which shall be no more than necessary to cover the costs of processing and investigation. (Ord. 95-17 §2 (part), 1995) 5.28.035 Application Requirements.l© SHARE p>r®::. Planning Commission - October 20, 2016 Item No. 3e Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) The following information shall be submitted to the City Manager by the owner at the time of applying for a permit: A. A description of all proposed entertainment business activities and anticipated occupancy; B. A site plan describing the building and/or unit proposed for the entertainment establishment and a fully dimensioned interior floor plan; C. The, application shall contain the following information: 1. The owner's name, residence street address, and mailing address, if different, and California driver's license number and any and all aliases, 2. The name under which the entertainment enterprise is to be operated, 3. The telephone number of the enterprise and the address and legal description of the parcel of land on which the enterprise is located, 4. The date on which the owner acquired the enterprise for which the permit is sought, and the date on which the enterprise began or will begin operations at the location for which the permit is sought, and 5. If the enterprise is owned and/or operated by a corporation, or other limited liability entity, the name of each officer and director of the corporation. If the enterprise is owned and/or operated by a partnership, the name of each general partner of the partnership; D. A statement under oath that the owner has personal knowledge of the information contained in the application and that the information contained is true and correct; E. A statement that the owner has read and understands the provisions of this chapter; F. A statement whether the owner previously operated in this or any other County, City or State under an entertainment establishment license/permit or similar business license, and whether the owner has ever had such a license revoked or suspended and the reason therefor, and the business entity or trade name under which the owner operated that was subject to the suspension or revocation; G. If the premises are being rented or leased or being purchased under contract, a copy of such lease or contract shall accompany the application. (Ord. 97-12 §2, 1997: Ord. 95-17§2 (part), 1995) Planning Commission - October 20, 2016 Item No. 3e Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) 5.28.040 Issuance of Permit...-investigation. : ........................................................................................................ A. Upon receiving an application for an entertainment permit, the City Manager shall conduct an investigation to determine if the proposed business is in compliance with the provisions of this chapter.The City Manager, shall, within fifteen days of receipt of a complete permit application, approve and issue the permit if all the requirements of this section have been met. If the City Manager determines that the application does not satisfy the requirements of this chapter, he/she shall deny the application. 1. The applicant shall be served with written notice of the decision. Notice shall be personally served or served by deposit in the United States mail,first class postage prepaid, at the address shown on the application. Service shall be deemed complete upon personal service or deposit in the United States Post Mail. 2. The City Manager shall take all lawful steps to insure that any applicant whose permit has been denied pursuant to this section shall be afforded prompt judicial review of the City Manager's decision to deny the permit. B. Standards for Approval of Permit. The City Manager shall approve and issue an entertainment permit if the application and evidence submitted show that: 1. The place of entertainment is proposed to be located in a zone permitting the proposed use under Title 20 of this Code; 2. If the occupancy limit of that portion of the premises where entertainment is performed is greater than two hundred (200) persons, at least one security guard will be on duty outside the premises, patrolling the grounds and parking areas at all times while the business is open.An additional security guard will be on duty inside the premises if the occupancy exceeds four hundred (400) persons.The security guards shall be charged with preventing violations of law and enforcing compliance by patrons with the requirements of this chapter. No security guard required pursuant to this subparagraph shall act as a door person, ticket seller, ticket taker, or admittance person while acting as a security guard; 3. The premises within which the entertainment is located shall provide sufficient sound absorbing insulation so that noise generated inside the premises shall not be audible anywhere on adjacent property or public right-of-way or within any other building or other separate unit within the same building; Planning Commission - October 20, 2016 Item No. 3e Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) 4. All entertainment described within Section 5.28.010 complies with the additional regulations in Section 5.28.041; 5. All signage conforms to the standards applicable to the zone; 6. All indoor areas of the place of entertainment in which patrons are permitted and entertainment is presented, shall be arranged in such a manner that the entire interior portion of the viewing area is open and visible from aisles and public areas of the place of entertainment and shall be open to view by management at all times.Visibility shall not be blocked or obscured by doors, curtains, partitions, drapes or any obstructions whatsoever; 7. Every place of entertainment shall have a manager on the premises at all times when entertainment is performed; S. The place of entertainment must not operate or be open between the hours of two a.m. and seven a.m. (Ord. 98-23§2, 1998: Ord. 97-12§3, 1997: Ord. 95-17§2 (part), 1995) 5.28.041 Additional Regulations.0 SHARE ©x®... The following regulations shall apply to all "entertainment"as described in Section 5.28.010(1): A. If the place of entertainment is licensed to serve alcoholic beverages, the permittee shall abide by the rules and regulations set forth by the California Department of Alcoholic Beverage Control. B. No person shall perform for patrons any"entertainment" as described in Section 5.28.010(1)except upon a stage at least eighteen (18)inches above the level of the floor which is separated by a distance of at least six feet from the nearest area occupied by patrons, and no patron shall be permitted within six feet of the stage while the stage is occupied by an entertainer. This subsection shall not apply to individual viewing areas where the stage is completely separated from the viewing area, floor to ceiling, by plexiglass or other clear permanent barrier. C. Stage or entertainment areas shall not be open to view from outside the premises. D. Permanent barriers shall be installed and maintained to screen the interior of the premises from public view for each door used as an entrance/exit to the business. E. No exterior door or window shall be propped or kept open at any time during hours of operation; any exterior windows shall be covered with opaque covering at all times. Planning Commission - October 20, 2016 Item No. 3e Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) F. No person under the age of eighteen (18)years shall be permitted within the premises at any time during hours of operation. G. The premises shall provide separated dressing room facilities for entertainers which are exclusively dedicated to the entertainers' use. H. The permittee shall provide an entrance/exit to the premises for entertainers which is separate from the entrance/exit used by patrons. I. No entertainer shall have physical contact with any patron and no patron shall have physical contact with any entertainer while on the premises. J. All areas of the place of entertainment accessible to patrons shall be illuminated at least to the extent of two foot-candles, minimally maintained and evenly distributed at ground level. K. Individual viewing areas shall be operated and maintained without any hole or other opening or means of direct communication or visual or physical access between the interior space of two or more individual viewing areas. L. No individual viewing area may be occupied by more than one person at any one time. M. All individual viewing areas shall be physically arranged in such a manner that the entire interior portion of the individual viewing area is visible from aisles and public areas of the premises.Visibility into the individual viewing rooms shall not be blocked or obscured by doors, curtains, partitions, drapes, or any other obstruction whatsoever. N. No patron, guest or invitee shall directly pay or give any gratuity to any entertainer and no entertainer shall accept direct payment or gratuity from any patron. O. No owner or other person with managerial control over an adult-oriented business (as that term is defined in Section 5.96.010 of this Code)shall permit any person on the premises of the adult-oriented business to engage in a live showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, and/or the female breasts with less than a fully opaque covering over any part of the nipple or areola and/or covered male genitals in a discernibly turgid state. This provision may not be complied with by applying an opaque covering simulating the appearance of the specific anatomical part required to be covered. (Ord. 99-2§2, 1999: Ord. 96-5§ 2, 1996: Ord. 95-17§2 (part), 1995) Planning Commission - October 20, 2016 Item No. 3e Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) 5.28.050 Permits Nontransferable i9 SHARE No entertainment establishment permit shall be sold, transferred,or assigned by any permit holder, or by operation of law, to any other person, group, partnership, corporation or any other entity, and any such sale, transfer or assignment, or attempted sale, transfer, or assignment shall be deemed to constitute a voluntary surrender of such permit, and such permit shall be thereafter null and void.A permit held by an individual in a corporation or partnership is subject to the same rules of transferability as contained above. Permit shall be valid only for the exact location specified in the permit. (Ord. 95-17§2 (part), 1995) 5.28.060 Revocation of Permitl© SHARE Il...I The City Manager may revoke a permit issued under the provisions of this chapter for any of the following reasons: A. The permittee has ceased to meet the requirements for issuance of permit; B. The applicant gave materially false,fraudulent or misleading information on the application; C. Music or noise from the establishment for which the permit was issued interferes with the peace and quiet of the neighborhood; D. The permit holder is convicted of a felony or misdemeanor occurring upon, or relating to the premises or lot upon which the place of entertainment is located which offense is classified by the State as an offense involving sexual crime against children, sexual abuse, rape, distribution of obscene material or material harmful to minors, prostitution or pandering, including, but not necessarily limited to the violation of any crime requiring registration under California Penal Code Section 290, or any violation of Penal Code Sections 243.4, 261, 261.5, 264.1, 266, 266a through 266k, inclusive, 267,286, 286.5, 288, 288a, 311 through 311.10, inclusive, 314, 315, 316 or 647; E. If, on two or more occasions within a twelve(12) month period, a person or persons has (have)been convicted of a felony or misdemeanor for an offense set forth in subsection (D)of this section as a result of such person's activity on the premises or property on which the place of entertainment is located, and the person or persons were employees, contractors or agents of the place of entertainment at the time the offenses were committed; F. If the permit holder or an employee has knowingly allowed prostitution, or solicitation for prostitution, on the premises; or Planning Commission - October 20, 2016 Item No. 3e Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) G. The place of entertainment has been operated in violation of any of the requirements of this chapter. (Ord. 96-5 § 3, 1996: Ord. 95-17 § 2 (part), 1995) 5.28.070 Appeals and Calls for Review.93 SHARE Ip YID A. If an applicant is aggrieved by any action or failure to act upon the part of the City Manager in issuing, failing to issue,suspending or revoking any permit under this chapter, such applicant may appeal to the City Council by filing with the City Clerk a statement addressed to the City Council setting forth the facts and circumstances regarding the action or failure to act on part of the City Manager.A member of the City Council, in their official capacity, may call for review any action on a permit by the City Manager under this chapter for the purpose of bringing the matter in front of the entire body for review.A call for review shall be filed with the City Clerk on a form provided by the Clerk. The City Clerk shall notify the applicant in writing of the time and place set for the hearing on his or her appeal or call for review. B. The right to appeal to the City Council from the denial, suspension or revocation of any permit, or a call for review regarding the same, required by this chapter shall terminate upon the expiration of fifteen (15)days following the deposit of a certified letter in the United States Post Office advising the applicant of the action of the City Manager and of his or her right to appeal such action to the City Council. C. The hearing shall be held within twenty(20)days of the receipt by City Clerk of the appeal or call for review, or at the next regularly scheduled Council meeting,whichever is sooner. D. The City Council of the City of Newport Beach may preside over the hearing on appeal or, in the alternative, appoint a hearing officer to conduct the hearing, receive relevant evidence and to submit to the City Council findings and recommendations to be considered by the City Council of the City of Newport Beach. The City Council shall preside over a call for review hearing. The City Council of the City of Newport Beach shall render its decision within five days from the date of the hearing or, in the event that a hearing officer has been appointed,within five days on which the City Council receives the findings and recommendations of the hearing officer. The decision of the City Council shall be final. (Ord. 2015-9§5, 2015: Ord. 95-17 §2 (part), 1995) 5.28.090 Exceptions!6 sHARE Ill I The provisions of this chapter shall apply prospectively and shall not operate to revoke any valid live entertainment permit in effect as of the date of the ordinance codified in this chapter. The provisions of this chapter shall not be deemed to require an entertainment permit for the following: A. For the use of a radio, record player,juke box or television receiver in any establishment; Planning Commission - October 20, 2016 Item No. 3e Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) B. For the use of a nonelectronic piano or organ in any establishment; C. For entertainment conducted pursuant to a permit issued under Chapter 11_03 of this Code. (Ord. 99-2 §§ 3, 10, 1999: Ord. 97-12 §4, 1997: Ord. 95-17§2(part), 1995: Ord. 95-9 §2, 1995) Editor's Note:The deletion of Section 5.28.090(C)in Section 3 of the ordinance codified in this section shall only apply to new businesses operating as private clubs. All private clubs where admission is not open to the public, lawfully in existence as of the date of adoption of said ordinance shall remain exempt from the provision of this chapter.The City Council finds that all other amendments adopted by said ordinance are declarative of existing law. 5.28.100 Permits and Fees Not Exclusive 10 SHARE Il...l Fees and permits required by this chapter shall be in addition to any license, permit or fee required under any other chapter of this Code. (Ord. 95-17 § 2 (part), 1995) 5.28.110 Public Nuisance.0 SHARE p1/®...I Notwithstanding any other provision of this Code, a violation of the provisions of this chapter shall not constitute a misdemeanor or infraction,but shall be enforced by appropriate action filed in the Superior Court. A violation of this chapter, or any provision of this chapter is hereby declared to constitute a public nuisance and, as such, may be abated or enjoined from further operation. (Ord. 99-2§4, 1999: Ord. 96-5§4, 1996: Ord. 95-17§2 (part), 1995: Ord. 95-9§2, 1995) Home G Planning Commission - October 20, 2016 NEWPORT , _ACH PLANNIYhG C��llg I�SSI 1 °> 6gditional M��0,4p,ewe j e i a e nn ut oor min Use Per 016 Fern Nueno gave an overview of the staff report: • The Village Inn began construction without a building permit and performed construction on Sundays, which violates City regulations; • There was a complaint with the Building Department and an inspector was sent out to the site who notified the owner that a building permit was required; • In response to a letter sent to the Department regarding dancing on site, the police were notified and stated that no dancing had been observed. • During the past few years, there has been a decline in calls for service at this site from the Police Department. • There is no requirement for a certain percentage of food sales under their ABC license. Scott Russo, attorney representing the applicant, noted: • A licensed contractor is doing the improvements. • The red tag occurred September 2008. • No intent to seek a dancing permit. • No requirement for a 50 percent food sales under their ABC license, • The application is necessary for increased business. • The area to be updated needs to be refurbished to make it conducive and pleasant for customers. Commissioner McDaniel noted his concern with the removal of the wall that acts as sound attenuation and the increased noise. Aric Toll, one of the owners of Village Inn, noted a six-foot hole will be put into a wall that spans the width of the building so that light will come in from the other side of the room. Discussion continued regarding noise, placement of the band and the configuration of the wall. Commissioner Toerge asked the applicant if he was in compliance with the conditions of his alcohol license. He was answered, yes. Commissioner Eaton suggested an additional condition for a one-year review of the application. Mr. Toll answered he would agree. Public comment was opened. Speaking in opposition: Mr. Roger Van Pelt — Marine Avenue resident noted issues of parking, traffic, attraction of 'bar' people, has seen dancing on the premise, other restaurants in the area are making it with their quality of food, noise comes out from the establishment when the doors are opened. On the weekends, when patrons get out on the street there is smoking, fights, loud conversations, public urination and vomiting. Don Deputy — Marine Avenue resident noted his concern of noise, especially during the summer; parking and traffic problems. Page 2 of 15 Planning Commission - October 20, 2016 NEWPORT _ACH PLANNIpfC; Cc�1�MI SI}��� o dditional Ma�t� i s Received I h"e Villagen�i Mt o� i i g Use Per f (( ) Shirley Van Pelt — Marine Avenue resident noted the configuration of the site will create a dance hall situation that will draw the drinking crowd. At Commission inquiry, she noted the sound does carry and the doors will now be opened and that will further impact both the sidewalk traffic and noise. With the quality and type of food she does not feel this will work for the betterment of the surrounding residences. Mike Sullivan — Marine Avenue resident noted his concern that this establishment is becoming more of a bar than a restaurant. In doubling the bar space what would that lead to? In a restaurant you do not hear the screaming which I hear at night with my windows closed. He has not called the police or complained about it. He has to pick up the trash in the mornings. It should be a restaurant, and if you approve this, there should be a commitment to improve the food and less noise. There is dancing there on the weekends. He noted his support of the restaurateur. Speaking in support: Ken Cowan — Crystal Avenue resident noted he enjoys the food at the bar, has not seen any fights or public nuisances as previously described. At Commission inquiry, he stated the dining area is dark and nobody goes in there. Michael Kranz — Diamond Avenue resident noted he frequents the establishment and that the new seating will be a benefit. Lori Kranz — Diamond Avenue resident noted her support of the application. Food quality is not the issue. This establishment is an asset to the community and people are friendly. Spencer Stepuvicke — as a past employee of the Village Inn, noted it is an asset to the community; the owner is very friendly and has provided games for the adults; it is a good place and hopes that it will become viable with the addition of the seats and new lighting features that will open the place up. Mr. Toll noted that last year he sold close to $400,000 in food with a full service menu. The operation will not change with the improvements. Public comment was closed. Commissioner Eaton noted: • Approval of this application would give the City the ability to impose conditions on the use that are not present now such as LEAD training; • A one-year review with a report on the amount of food sales would give the opportunity if additional conditions need to be imposed; • This is licensed as a restaurant. Commissioner Hillgren asked if anything else will be changed in the space other than opening the wall. Page 3 of 15 Planning Commission - October 20, 2016 NEWPORT_ -ACH PLANNI[ � C��VIMI�SSIIii°additional MrrY � ��Q�e016 e i age nn ut oived or i g Use Per ( ) Mr. Toll answered a counter top, opening and a couple of televisions along with paint and finishing touches are all planned to match the other side. He stated that he has no objections to the conditions contained in the staff report and would agree to a weekend restriction of opening at 9:00 a.m. At Commission inquiry, Mr. Lepo noted that this is an old liquor license and the regulations have since changed. When that license was issued there was no minimum food sales requirement. This was not licensed as a bar; they were expected to serve food. Commissioner Unsworth asked if there had been sound testings. Commissioner McDaniel noted there was quite a bit of testing done as this place had been an issue on the Island for a very long time. Recently, improvements had been done on the premises such as new glass and a reconfiguration. Noise does spill out with doors opening and closing. That is not the problem; it is once the patrons leave the premises and go into the community it wakes the whole area up, which is not the responsibility of the owner. Chairman Peotter asked if there were restrictions on live entertainment. Ms. Nueno answered that live entertainment is allowed with no more than five musicians or vocalists using amplified music or microphones limited with certain decibel limits. Chairman Peotter asked about the hours between midnight and 2 a.m. Mr. Toll noted he would agree to a condition restricting those hours during the weekend if he was granted the conversion of bar seating in the dining room. Commissioner Toerge noted if this project is not allowed, then it is status quo. It was suggested that LEAD training and other modifications to the business to address the concerns of the Commission; how could this operation be improved? Mr. Toll noted he is proud of the current operation and works very hard. The Police Department knows we control our patrons and the control of liquor service and the establishment is in good standing with the ABC. Commissioner Toerge asked if the food percentage will change if this application was granted. Would you agree to a 50 percent food sales? Mr. Toll answered now people do not use that area. He would not agree to the food percentage; however, it is a goal but he has not achieved it yet. At Commission inquiry, he noted the doors in the remodeled area should be there for use. After hours is different as they will be closed for noise containment. He agreed to a condition that after 8 p.m. those doors will be used for emergency use only. Page 4 of 15 Planning Commission - October 20, 2016 ived NEWPORT �_ACH PLANNING �MMI)SSllli°additional MaXrj�(s�e4�e016 The i lage nn ut oor i i g Use Per ( ( ) Commissioner Hawkins asked if the applicant would agree to a 40 percent food to alcohol ratio with an annual report back to the Planning Commission. Mr. Toll agreed. Scott Russo noted there will be an annual review. If necessary, Mr. Toll will agree to cut back those hours; however, ten percent ($100,000) of his business comes during those hours. The reason for this request is that the Village Inn is not a viable business and has not been one since the Tolls took over. This change is necessary as the Village Inn has to turn a profit and must become a viable enterprise. Detective Dave Stark noted the Police Department would support the time change closing at midnight as it would enhance public safety and addresses concerns previously stated. The problems occurring at 2 a.m. would go away and alleviate the neighbors' concerns if this place closes at midnight. Commissioner McDaniel noted he does not support this application. Points have been made if this was approved that conditions could be applied. However, the Village Inn will no longer be a restaurant, it will be a bar. It clearly is,indicated that with the televisions installed it will change the nature of that establishment. Whether it is profitable or not, is not an issue for Commission consideration. I believe changing the closing hours will be a help. Commissioner Unsworth asked what recourse the Commission would have in a year's time with a review. Assistant City Attorney Harp answered different conditions could be added in order to address those violations. Motion was made by Commissioner Eaton and seconded by Commissioner Hawkins to adopt resolution approving UP2009-002 with the following modifications: • Restriction of hours of operation not past midnight Friday and Saturday nights. . One-year review by the Planning Commission of the operational characteristics with a request for information on the amount of alcohol sales. Commissioner Hawkins noted this is a difficult issue due to the small location with nearby adjacent neighbors. Any restaurant operation serving alcohol will have a noise impact and that is problematic. As a member of the City's Economic Development Committee, he noted their concerns with the current economic situation. The new hour restriction will result in a benefit and the annual review will allow further conditions if necessary. He noted his support of the motion. Page 5 of 15 Planning Commission - October 20, 2016 NEWPORT _ACH PLANNI�(G C�fvlg I�SSI RI ii°t g itional M��(i,� Ageive j he i a e nn ut oor min Use Permi (Z 016 Commissioner Hillgren noted his concern of this becoming a bar. He noted his support of the Village Inn as a restaurant that serves alcohol. The reduction of hours is an important step in confirming the genuine intent to operate a restaurant that serves alcohol. He proposed an amendment to the motion to have a goal of 40 percent food sales for the annual review. The maker and the second of the motion agreed. Commissioner Hawkins asked staff's opinion regarding food sales percentages. Mr. Lepo answered to the extent that provides the Commission with indication of this retaining a restaurant rather than a bar, that would be up to you to decide the percentage they show. Short of an outside review of the data, you will have whatever data that is submitted by the applicant. Commissioner Toerge noted we want to see improvement and these movements are helping this project become more compatible and helping the applicant become more successful. If there have been no complaints within a year and the applicant wants to stay open later, then that may be a possibility. Mr. Harp noted a violation of a goal would not be an enforceable condition. When they would come back in a year, you would look at if they had breached some of the conditions that were imposed upon them. Discussion continued on the findings and the need for evidence for enforcement. Chairman Peotter proposed to opening earlier at 7.00 a.m. Both the maker and second of the motion agreed. Chairman Peotter then proposed that the doors on the west side on Park Avenue to be used as emergency exit only after 8:00 p.m. Both the maker and second of the motion agreed. Ayes: Eaton, Unsworth, Hawkins, Peotter, Toerge and Hillgren Noes: McDaniel Excused: None "`SUB_JECT: Balboa Inn Hotel/Sienna Restaurant (PA2008-197) ITEM NO. 3 ,,-105 Main Street PA2008-197 The applicant is requesting_,gn amendment to Use Permit No. 3158 to: 1) reduce Approved and reconfigure the floor area allocated for restaurant dining; 2) expand the venue or private events with live entertainment`to=inelude the use of the covered courtyard; 3) extend the hours for private events with five-e0tertainment; 4) increase the number of private events with live entertainment permitfdd-per month and remove a restriction that prohibits such events from occurring during the Months of July and ugust; and 5) allow live entertainment for the patrons of the restaurant within the covered courtyard Jaime Murillo, Associate Planner, gave an overview of the staff report. Page 6 of 15 Planning Commission - October 20, 2016 Item No. 3f Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Subject: FW: Planning Commission hearing Village Inn From: Carol McDermott <carol(a�,entitlementadvisors.com> Date: October 19, 2016 at 3:43:07 PM PDT To: "Wisneski,Brenda" <BWisneski(a newportbeachca.eov> Cc: "danvibdt(dgmail.com" <danvibdt(d,gmail.com>, Julie Cavanaugh <juliekentitlementadvisors.com> Subject: RE: Planning Commission hearing Village Inn Brenda: the clients and I have decided to ask for a continuance on the Village Inn CUP until November 3 to allow us some more time to resolve the bike rack relocation opportunities. Do I need to send a more formal request for continuance? Thank you, cmmc Carol Mentor McDermott,AICP Principal Entitlement Advisors Track Record +Team +Tenacity 5000 Birch, Suite 400 East Tower Newport Beach, CA 92660 (949) 717-7939, office (949)422-2303, cell (949) 209-2045,fax carol@entitlementadvisors.com t Planning Commission - October 20, 2016 Item No. 3g Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) From: Mike Sullivan <sullivanphoto@roadrunner.com> Sent: Thursday, October 20, 2016 12:09 PM To: Kramer, Kory; Dunlap, Bill; Koetting, Peter, Hillgren, Bradley; Lawler, Ray;Weigand, Erik,Zak, Peter, Biddle,Jennifer; Campagnolo, Daniel Cc: Peter Bergman; Suzanne Savary Subject: Dear Gentlemaen Follow Up Flag: Follow up Flag Status: Flagged The Village Inn has requested yet another continuance for the scheduled hearing tonight regarding their application for outdoor dining and the relocation of the city bike rack onto the residence next door. You may remember outdoor dining was rejected by the commission last December. That application was their third attempt, having withdrawn two previous ones, They then applied for lot merger and lot line adjustment, and allowed fifteen meetings to come and go before withdrawing. Each time our entire block of homeowners has geared up emotionally and strategically, only to be let down. They have a lobbyist to read the tealeaves and encourage our input, and read what we write to the city to figure out what our our talking points will be. Then they pull the plug to go back to form another plan. We are ready to go tonight. All of us! We request that you reject their request for a continuance and let's get thing thing behind us. Thank you, Mike Sullivan 1