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HomeMy WebLinkAbout10/09/2008CITY OF NEWPORT BEACH Planning Commission Minutes October 9, 2008 Regular Meeting - 6:30 p.m. INDEX ROLL CALL Commissioners Eaton, Unsworth, Hawkins, Peotter, McDaniel, Toerge and Hillgren - all present. STAFF PRESENT: David Lepo, Planning Director Aaron Harp, Assistant City Attorney Tony Brine, Transportation /Development Services Manager Patrick Alford, Planning Manager Fern Nueno, Assistant Planner Gaylene Olson, Department Assistant PUBLIC COMMENTS: PUBLIC COMMENTS None POSTING OF THE AGENDA: POSTING OF THE AGENDA The Planning Commission Agenda was posted on October 3, 2008. HEARING ITEMS ITEM NO. 1 SUBJECT: MINUTES of the regular meeting of August 21, 2008. Approved Motion was made by Commissioner Hawkins and seconded by Commissioner Toerge to approve the minutes as corrected. Ayes: Eaton, Unsworth, Hawkins, Peotter, McDaniel, Toerge and Hillgren Noes: None Excused: None SUBJECT: Shore House Cafe (PA2008 -123) ITEM NO. 2 801 East Balboa Boulevard PA2008 -123 Denied request for a use permit (UP2008 -045) for an existing full- service restaurant to How 1) conversion of approximately 93 square feet of storage area into net publi area; 2) live entertainment on Fridays and Saturdays; 3) operation of an alcoholi beverage outlet under the provisions of the Alcoholic Beverage Ordinance (ABO); parking waiver for the additional parking spaces that would normally be the increase in square footage. Nueno gave an overview of the staff report, noting the following: Staff recommends denial of Use Permit No. 2008 -045 without meaning the applicant is allowed to re -apply within the year. . A parking management study for Balboa Village is being conducted after completion of the study it may show a different parking situation for area. If the application is denied the applicant may continue their e) nonconforming use with the restaurant and alcohol sales, but will be ur to expand or intensify, including the proposed 93- square -foot addition live entertainment. response to questions from Commissioner McDaniel and Commissioner Eat Larding the parking management study and what difference it could ma carding the parking waiver, Mr. Lepo noted the study would reflect the dema the Shore House's current usage. He did not expect any wholesale waiver nconformities. The waiver would still be required for the additional two spac the proposed expansion, even if the study indicated a surplus of spaces ver the additional two spaces. Lepo responded to Commissioner Unsworth's concern about the prc Amity to Balboa Park by noting that was a subjective call that could be Ic by the intensities of uses in the area, typical size of lots, and sepa ween one use and another use, but certainly could be another reason to o request. I. Harp, at Commissioner Hawkins's inquiry, noted the applicant has no cu erating permit; therefore, they have no vested rights. In respect to nconforming use, any conditions that the Commission may propose would i be looked at. Peotter requested Mr. Lepo to clarify the following: If the Commission approves the applicant's request, it would bring nonconforming use into compliance and they could condition the project. . If the Commission denies the request, per staffs recommendation, Commission does not have the opportunity to condition the existing use there will just be enforcement issues on what is or isn't allowed. Lepo noted that is essentially correct. I Fagundes, representative for applicant and general manager of Cafe, noted: . Submitted letters of support from Crystal Sechrist, resident; Schaefer, resident; Bob Lee, resident; and Charles Hudbrich, USPS Manager Balboa. . Requested a six month temporary license to show they are in with all rules and regulations. After six months, if they have not been in compliance, the Commission deny the applicant's request. Is aware there is an issue with the Police Department regarding calls in area being 75 percent alcohol related; was unable to subpoena the recc in time for the meeting, but they would show 90 percent of the calls are to the Shore House. The Shore House Cafe is a bonafide restaurant trying to serve food at later hour, give the clientele an opportunity to enjoy some type entertainment, and is not operating as a cantina, bar or nightclub. Fagundes, at Commission inquiry, noted: . In no way are they operating as a nightclub, as proposed by the Poli Department; in looking at the definition of a nightclub, that characteristic unfair and unwarranted. . They open at 7 a.m. for breakfast every day, where as a nightclub at night and generally has Go -Go dancers, loud acoustic music, etc. . A live entertainment permit was denied last summer; they continued operate with live entertainment; was fined twice for operating without conditional use permit; stopped the Friday night entertainment until 0 hearing, but have continued Karaoke not realizing singing to a song w considered live entertainment. . The live entertainment proposed would typically be Top 40s with a DJ. . After the second fine, he was under the belief there was a gr, clause for entertainment since the license was issued in the 1950 the CUP's were required, and continued with the live entertainment. . Percentage of sales, past 10 p.m., is currently 30 percent alcohol and percent food and are working on maintaining that standard. Generally F midnight they bring the price of food down to entice patrons to order m food and less alcohol. They serve food until 1 a.m., last call is at 1:15 a. and they close at 2 a.m. Lepo noted the Code defines cabarets and nightclubs as establishments wi principle purpose of providing live entertainment and/or dancing, occupyir a 20 percent of the net public area in conjunction with the serving of foc For beverages. With this definition, the Shore House Cafe would be acting as tclub on the weekend. Doug Jones, representing the Newport Beach Police Department working in Vice and Intelligence, noted: . Shore House Cafe was brought to his attention from another officer working the area stating the Cafe was acting as a nightclub with live entertainment DJs, and large crowds, with the demographics as a younger crowd. . He contacted the City and worked with Code Enforcement to establish CUP and what was or wasn't permitted. . There have been several issues on the Peninsula and in the City related eating establishments acting as nightclubs at night and many times withi the proper permits. . Patrol Officer Foss has been involved with these types of issues for over year and is well versed in handling these situations. . On June 13, 2008, Officer Foss met with Mr. Fagundes, gave him professional courtesy call, pointing out the crowded aisles, li entertainment, serving alcohol on the patio and explained he needed to c the proper permits. Again on July 12, 2008, Mr. Fagundes was warn about these violations. . On July 19, 2008, Officer Foss again noted the violations and Mr. was cited by Code Enforcement. . Calls for service at this location include drunkenness, assaults, criminal threats, theft reports, and unknown type trouble. . From May 2007 to April 2008, the Police had 11 calls to this averaging 5.5 calls per 6 month period; zero arrests. . After the introduction of live entertainment and the nightclub atmosph from May 2008 to October 7,2008, the Police had 15 calls, almost triple average for a 6 month period; five arrests, which included two DUls, drunk in public, and two resisting arrest. This is a substantial issue concern for the Police Department. . The Police Department wants to work with the Shore House Cafe so will be successful; however, Mr. Fagundes blatantly disregarded the F by not working with them and by not following the rules. . If the requested permit is approved, the Police are concerned that this be a problem location. nissioner McDaniel asked Detective Jones to give his opinion on why Mr rides would continue to operate with live music, over - crowding, and provide )ke after being warned of the violations, clearly aware of the violations, anc twice. :tive Jones noted in his position and experience with working v esses, managing operators know there is a lot of money to be made can be paid and it's worthwhile, business -wise, to do that. Detective Joi 't saying that is what Mr. Fagundes is doing, but is seems pretty clear and come up with any other reason. :ommissioner Unsworth noted he had a concern the more drii stablishments on the end of the Peninsula would add more DUI arrests in Di 2, but also infiltrate all the way up the Peninsula through two more districts, utting the whole Peninsula in danger. an Peotter asked for a clarification on how the Police identified the in the past 6 months as being from the Shore House Cafe versus c in area. elective Jones noted when it comes to drunk in public arrests, the made through investigating, and talking to witnesses and suspects. rmmissioner Hawkins noted that staff recommended denial of the a thout prejudice, so the applicant can re -apply and wanted to know the the Police Department or Detective Jones as to that recommendation. ,tective Jones answered the Police recommendation would be the same tods in a year in that they could not support another nightclub -type atmosphere ( e Peninsula; per capita, they are inundated with this type of establishment and problematic. He also noted the issue isn't if they want to be a restaurant ar rve alcohol, that's great. The issue is the nightclub -type atmosphere, whe )ically the people are there for the live entertainment and drinking, and very fe eating after 10 or 11 p.m. comment was opened. paring in support for the Shore House Cafe was Joe Gutierrez, local owner of Jag Event Services, a nightlife entertainment company and for DJs, performers, bands and acts of talent; also owner of I ceting a private marketing firm and noted: . Shore House Cafe has had ABC - issued permits in the past, prior to CUP, for live entertainment, alcohol service inside and outside on the f late at night and burlesque dancers. . Doesn't think they are using their total capacity allowance in just one but are only utilizing the capacity for that specific room. . This establishment has been operating since the 1950s with Karaoke, private parties, weddings, etc., and it is a major source of for the bar and restaurant, and for the local community. . Regarding the parking waiver, there is plenty of local parking in several within walking distance. . All ages come to enjoy the Karaoke and sports TV. comment closed. Peotter invited the applicant to respond to any comments made. Fagundes noted the following regarding Detective Jones's comments: The Police did walk through and explain the violations, gave warnings, but the officer was unclear of the CUP conditions. . They were cited, but continued with the Karaoke, as he wasn't sure what definition was for live entertainment. There are two other bars adjacent to the Shore House Cafe, one being Cabo Cantina, which was the Studio Cafe, and now serves 2 -for -1 dr during happy hour and from 10 p.m. to 2 a.m. Patrons from the other bars who are intoxicated, walking by establishment, ultimately become his responsibility if they fall down in of the establishment or his door people turn them away. Patrons from the adjacent bars do park in the Shore House Cafe's 1 lot, looking as though they had been in the establishment but had not. Does not believe all the arrests pointed out in Detective Jones's were associated with the Shore House Cafe. loner Hawkins asked Mr. Fagundes if it was his position that the ment was grandfathered in, and has been a condition or a right under ABC permit. Fagundes answered yes. From the 1950s thorough 1990s, there was a pi harp players, and music and never a requirement to get a CUP. He lerstands the law, immediately applied for the license, ceased the DJ, lesse occupancy load, hired extra staff and security, and wants to comply with Toerge noted: . We need successful businesses on the Peninsula. . Shore House Cafe already has a parking waiver for 50 spaces . What has brought attention to the establishment are the violations; if can operate within their occupancy limits, have no issues to c complaints, then they could probably have Karaoke and continue wi' effecting anyone. . Sees no community benefit in having another nightclub. . Does not support closing the restaurant and wants to see it succeed. . The Coastal Land Use Plan is very specific and read the following provisi< "Continue to require properties with nonconforming parking provide co required off - street parking when new uses, alterations, or additions result increase parking demand ". The Commission can't approve the expand use because of the parking waiver request. The other requirement "Approve no application for modification or waiver of off - street parki requirements that are found to impact public parking in the coastal zone ". . He cannot support the expansion. was made by Commissioner Hawkins and seconded by Commi: to move staffs recommended resolution with the following changes: . Change to with prejudice, which means the application cannot resubmitted for a year. . On Page 2 of the resolution, under findings, strike "facts in opposition findings." Section 1, under the resolved section, insert "with prejudice" "denies." mer Toerge made a substitute motion that was seconded Peotter to adopt resolution denying Use Permit No. 2008 -045 witl sioner McDaniel requested an explanation of the difference without prejudice and denying with prejudice. Harp stated there is a code requirement that says if you deny with applicant cannot re -apply for a year; denying without prejudice the resubmit an application within the year. Hawkins opposed the substitute motion. ate motion failed with a vote of 4 noes - Hawkins, Eaton, McDaniel, and 3 ayes - Unsworth, Peotter, Toerge continued on Mr. Hawkins' original motion. Lepo wanted to note the finding on Page 2 of the resolution should have said: . That the proposed location of the Use Permit and the proposed condi under which it would be operated or maintained will not be consistent the General Plan... . Facts in support of finding. Hawkins said he would accept that as an amendment to the motion. Hawkins addressed the applicant and noted he had the right to appeal None None NEW BUSINESS: NO. 3 Planning Commission committee appointments: Chairman Peotte requested this item since the Chairman position had changed and these committee appointments should be re- evaluated. At this time there are three commissioners on the GP /LCP Implementation Committee, Mr Eaton, Mr. Hawkins, and Mr. Toerge, and asked if they wished to continue to serve on the GP /LCP Implementation Committee. They answered yes. Chairman Peotter reappointed them for another year. NO. 4 City Council Follow -up: Mr. Lepo noted the Megonigal project appealed to the City Council, but was taken off the agenda for fui environmental impact review. NO. 5 Planning Commission reports: Commissioner Eaton reported GP /LCP Implementation Committee is now meeting weekly; numei differences between the proposed code and the existing code. NEW BUSINESS Commissioner Hawkins reported that at the last EDC meeting, received reports from local businesses regarding the current econ conditions and the challenges they are faced with. There will be ani meeting next Wednesday with additional business representatives their reports. NO. 6 Announcements on matters that Commission members would like placed on a future agenda for discussion, action, or report: None NO. 7 Requests for excused absences: None p.m. BARRY EATON, SECRETARY CITY OF NEWPORT BEACH PLANNING COMMISSION