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HomeMy WebLinkAbout1762 - APPROVE TO AMEND UP2001-005 & RESCIND UP 2002-034_SEJOUR EUROPEAN BISTRO & LOUNGE _3400 VIA LIDORESOLUTION NO. 1762 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH AMENDING USE PERMIT NO. 2001 -005 & RESCINDING USE PERMIT NO. 2002 -034 (SEJOUR EUROPEAN BISTRO & LOUNGE) ON PROPERTY LOCATED 3400 VIA LIDO (PA2002 -167) THE PLANNING COMMISSION FOR THE CITY OF NEWPORT BEACH HEREBY FINDS, RESOLVES AND ORDERS AS FOLLOWS: WHEREAS, Sejour European Bistro & Lounge ( "Sejour") is located at the northwest corner of Via Lido and Via Oporto and legally described as Lot 2 of Tract 1235; and WHEREAS, on April 5, 2001, the Planning Commission approved Use Permit No. 2001 -005 to allow a retail wine establishment to operate with a Type "21" Alcohol Beverage Control (ABC) license (Off -Sale, General) and Type "42" ABC license (On -Sale Beer and Wine, Public Premises) with periodic on -site wine tasting seminars and a parking waiver; and WHEREAS, on November 7, 2002, the Planning Commission adopted Resolution No. 1579 of Use Permit No. 2002 -034, amending conditions of approval of Use Permit No. 2001 -005, authorizing a Type "47" ABC license (On -Sale, General- Eating Place) for on -site consumption of general alcohol beverages, live entertainment and expansion of hours of operation; and WHEREAS, pursuant to Section 20.96.040 of the City of Newport Beach Municipal Code, the Planning Director determined that there were reasonable grounds for the revocation of Use Permit No. 2001 -005 and Use Permit No. 2002 -034 and set a public hearing so that the Planning Commission could set a date to consider the revocation of Use Permit Nos. 2001 -005 and 2002 -034; and. WHEREAS, after giving proper notice in accordance with law, a public hearing was held on January 17, 2008, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. The Planning Commission unanimously voted to set a revocation hearing for Use Permit No. 2001 -005 and Use Permit No. 2002 -034 on March 20, 2008; and WHEREAS, on March 20, 2008, the Planning Commission continued the revocation hearing to April 17, 2008, at the request of the property owner; and WHEREAS, on April 17, 2008, after the Planning Commission commenced the revocation hearing and received public testimony, the Planning Commission directed staff to draft a list of conditions of approval that reflect the following considerations : ■ Reduction of the hours of operation to require the closure at 11:00 p.m.; ■ Reestablishment of the retail sales use with wine tasting and educational seminars as an ancillary use; City of Newport Beach Planning Commission Resolution No. _ Page 2 of 14 ■ Removal of the existing physical improvements not consistent with operational requirements for an off -site retail sale outlet with wine tasting as ancillary use; and, ■ Elimination of Type 47 ABC license. WHEREAS, on June 5, 2008, the Planning Commission continued the revocation hearing to July 17, 2008, in order to give the property owner additional time to file a new use permit for the operation of a full- service eating and drinking establishment with a retail sale component at the subject property. The property owner was required to submit the use permit application to the Planning Department by June 30, 2008. If a new application was not received by June 30, 2008, the Planning Commission intended to resume the revocation hearing on July 17, 2008, with the intent of modifying the conditions of approval to allow the use to be reestablished as was originally intended; specifically, an off -sale retail wine store with wine tasting as an ancillary use; and WHEREAS, on June 30, 2008, the property owner announced that they have entered into negotiations to lease the property to HOM Real Estate Group of Newport Beach for an office use and will not be submitting a new use permit.; and WHEREAS, the property owner failed to submit the use permit application by June 30, 2008, and the Planning Commission resumed the revocation hearing on July 17, 2008, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting; and WHEREAS, it is the intent of the Planning Commission to bring the operation of the establishment into conformity with the original project approval, as retail sales use with wine tasting and educational seminars as an ancillary use. As a result, the findings stated for the approval of Use Permit No. 2001 -005 remain valid and are hereby readopted, in addition to the findings of fact stated in Exhibit "K. NOW, THEREFORE, BE IT RESOLVED: Section 1. The Planning Commission of the City of Newport Beach hereby amends Use Permit No. 2001 -005 by incorporating the conditions of approval in Exhibit "B" and rescinding Use Permit No. 2002 -034 that permitted the sale of distilled spirits for on -site consumption, live entertainment and expanded hours of operation. Section 2. This action shall be become final and effective fourteen (14) 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. City of Newport Beach Planning Commission Resolution No. _ Page 3 of 14 PASSED, APPROVED AND ADOPTED THIS 17TH DAY OF JULY 2008 AYES: Eaton, Hawkins, Peotter and McDaniel ABSTAIN: Unsworth NOES: None ABSENT: Toerge and Hillgren AM Scott PeotteeL Chairman BY: Zai , Z-Al Barry Eq, 71 1 Secretary City of Newport Beach Planning Commission Resolution No. _ Page 4 of 14 EXHIBIT "A" FINDINGS OF FACT FOR AMENDMENT TO USE PERMIT NO. 2001 -005 Having heard the evidence presented by the staff, owner and others, and having fully considered the evidence and the argument of the parties and their counsel, the Planning Commission does hereby find and determine as follows: That the following terms or conditions of approval stated in the Planning Commission Resolution No. 1579, an amendment to Use Permit No. 2001 -005, have been violated or other laws or regulations have been violated: 1. CONDITION NO. 1 The development was not operated in substantial conformance with the approved plot plan, floor plan and elevations dated January 22, 2001. This condition was violated on the following occasions as documented by the following: Fenced -off patio across sidewalk Ex 6 — 4115/07 Doug Jones memo Ex 7 — 4/20107 Supplemental police report DR 07 -03722 4119107 Follow -up police report Ex 8 — 4128107 Doug Jones memo Ex 9 — 5/01107 Admin cite Ex 14 — 5126107 Admin cite Installation of tables, booths Ex 5 — Floor plan showing Unit Al and A2 Ex 6 — 4119107 Follow -up police report Ex 14 — 5126107 Unit Al bottle service Ex 15 — 11113107 booth with alcohol consumption Al (dancing) City of Newport Beach Planning Commission Resolution No. Page 5 of 14 2. CONDITION NO.4 Should this business be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing agent. Future owners, operators or assignees shall submit, within 30 days of transfer or sale of the business or alcohol license, a letter to the Planning Department acknowledging their receipt and acceptance of the limitations and conditions of approval of this Use Permit. The Overstreets submitted declarations that they submitted a copy of the Use Permit to Stockton as part of the sale transaction. (Declaration of Dennis Overstreet) "Sejour LLC" in its submittal to the Planning Commission (not signed by anyone) vaguely states it was misinformed about the conditions. The condition was violated in that a letter was never submitted acknowledging receipt and acceptance of the conditions. The Lease stated that a bar use was permitted. 4. CONDITION NO. 5 The applicant shall comply with all federal, state, and local laws. This condition was violated on the following occasion as documented by the following: S Building Code Ex 17 — Occ. Exceeded, 11/28/07 NBPD report (120 not 99) ABC requirements Ex 22 (ABC License) — hours, dancing Exs 6, 15, 17 — no dancing Blocking sidewalk (NBMC 10.50.020) Ex 6 — 4115107 Jones memo Ex 14 — 5/26/07 Admin cite 11681 2 citations not appealed Ex 9 — 5101107 Admin cite 0395 Ex 14 — 5126107 Admin cite 11681 City of Newport Beach Planning Commission Resolution No. _ Page 6 of 14 5. CONDITION NO. 11 The sale of distilled spirits for off -site consumption shall not exceed 15% of gross receipts of all off -site alcohol sales. The sale of distilled spirits for on -site consumption shall not exceed 10% of the total sales for on -site consumption of all alcoholic beverages. This condition was violated as proven by the following (and there is no evidence that the business was ever in compliance with this condition): Ex 10 — 5104/07 Letter from Lepo asking for gross receipts for alcohol sales Ex 16 — 11113107 Request for sales records Ex 12 — 5110107 — Stocktons write liquor constitutes 17% of sales Stocktons (Sejour) contend need different ratios to be able to comply 6. CONDITION NO. 13 Approval does not permit the premises to operate as an eating and drinking establishment, restaurant, bar, tavern, cocktail lounge or night club as defined by the Municipal Code, unless the Planning Commission first approves a Use Permit. City of Newport Beach Planning Commission Resolution No. _ Page 7 of 14 This condition was proven to have been violated by the following: Ex 7 — 4121107 NBPD DR 07 -3722 — "full bar" in operation with restaurant menu, bottle service Ex 14 — 5126107 Admin cite — private party Ex 6 — 4120107 Report — full bar open Ex 15 — 11109107 — bouncer at door, bottle service, amplified music; 11/13/07 — nightclub with hard alcohol, music, bouncer, dancing The Lease stated that "bar restaurant and live entertainment business" was a permitted use. 7. CONDITION 14 The interior area authorized for on -site alcoholic beverage consumption in conjunction with a Type 47 license shall be limited to 1,263 sq. ft. as delineated on the approved floor plans as "Unit A2" with a maximum of 29 seats. The interior area authorized for the retail sales for general alcoholic beverages for off -site consumption shall be limited to 1,328 sq. ft. as delineated on the approved floor plans as "Unit Al" with a maximum of 3 seats. On -site consumption of alcoholic beverages shall be prohibited in Unit Al. Substantial changes to the floor plans shall require prior approval by the Planning Commission. Any increase in area of either Unit Al or Unit A2 shall be deemed substantial for the purposes of requiring review by the Planning Commission. This condition was proven to have been violated by the following memorializations: City of Newport Beach Planning Commission Resolution No. _ Page 8 of 14 Ex 6 — 4120107 Supplemental police report Ex 14 — 5126107 Admin cite Ex 15 — 11109107 Police report — drinking in Al, dancing in Al Ex 17 — 11/28/07 NBPD report — drink orders being taken in Al, 20 -25 people with food /drink 8. CONDITION NO. 15 Hours of operation shall be from 10:00 a.m. to 11:00 p.m. daily for the retail portion of the project, and 1:00 p.m. to 12:00 midnight Fridays and Saturdays and 1:00 p.m. to 11:00 p.m. Sunday through Thursday for the eating and drinking portion of the project. This condition was violated as reported as follows: City proof /assertions Ex 17 — 11/28/07 NBPD report — serving drinks after midnight 9. CONDITION NO. 16 Live entertainment may occur subject to the approval of a Live Entertainment Permit and dancing is prohibited. Live entertainment shall not occur more than 3 days per week. Music shall be limited to indoor areas only and all windows and doors shall remain closed during performances except for incidental ingress and egress of patrons. Management of the business shall make every effort to keep the doors closed during performances. City of Newport Beach Planning Commission Resolution No. Page 9 of 14 This condition was violated as described in the following reports: City proof /assertions Ex 6 — On 4119107 — 4120107, NBPD DR 07 -322 observed /heard music from open doors, dancing Ex 14 — 5126107 Admin cite — door open facing Via Oporto, dancing? 10. CONDITION NO. 18 A Special Events Permit is required for any event, promotional activity outside the normal operational characteristics of this retail business that would increase the expected occupancy beyond 29 patrons and 6 employees at any one time or any other activities as specified in the Newport Beach Municipal Code to require such special events permit. This condition was violated as described in the following reports: Ex 7 — 4121/07 — roped off line 11109107 NBPD 11130107 NBPD 11. CONDITION No. 23 Loitering, open container, and other signs specified by the Alcoholic Beverage Control Act (ABC) shall be posted as required by the State Department of ABC. This condition was violated as described n the following report: City proof /assertions Ex 6 — NBPD — no signs posted City of Newport Beach Planning Commission Resolution No. _ Page 10 of 14 DETERMINATION For all of the above reasons the Planning Commission finds that the Use Permit was violated. These violations also establish additional grounds of operating an establishment in an illegal manner, and violating ABC rules. These grounds are separate bases for the Use Permit revocation /modification. Although Overstreets contend they are not responsible for the actions of their tenants, the Planning Commission finds that the owner of a Use Permit, which runs with the land, has certain responsibilities to investigate and make sure the permit is being operated in compliance with the terms and conditions of the Use Permit. The Overstreets failed to supervise this operation as the owner of the Use Permit. For all of these reasons, the Planning Commission finds that grounds for modification have been established and does hereby impose such conditions which will return the premises to the original intended use. City of Newport Beach Planning Commission Resolution No. Page 11 of 14 EXHIBIT "B" CONDITIONS OF APPROVAL Conditions in bold are project specific conditions. All others are standards conditions. 1. The alcoholic beverage outlet is hereby defined as a retail establishment for the sale of general alcoholic beverages for off -site consumption as the primary and principal use of the subject property per the Type 21 ABC license. The on -site consumption of alcoholic beverages shall be limited to wine or beer tasting per the Type 42 ABC license and shall be confined to the wine tasting bar. The serving of distilled beverages is prohibited. 2. The primary and principal use of the establishment shall be retail sales with ancillary use of wine tasting and wine educational seminars. The existing floor plan shall be revised to reflect the primary and principal use of the establishment. Prior to the reopening of the establishment, all dining - related fixtures including tables and chairs shall be removed to the satisfaction of the Planning Director. 3. No seating is to be allowed in the wine tasting bar. 4. Wine tasting shall be defined and limited to the presentation of samples of one or more wines, representing one or more wineries or industry labels, to a group of consumers for the purpose of acquainting the tasters with the characteristics of the wine or wines tasted. 5. Each tasting shall be limited per the Department of Alcohol Beverage Control. 6. Wine tasting fees required by the Department of Alcohol Beverage Control shall not exceed 10 percent of the gross retail sales during the same period. The licensee shall maintain records that reflect separately the gross retail sales and the gross wine tasting sales. Said records shall be kept no less frequently than on a quarterly basis and shall be made available to the Planning Department on demand. 7. In addition to wine tasting, the licensee /business operator may provide small amounts of bread, crackers, cheeses or nuts to clear the taste buds of the participants between successive samples of wine during a wine tasting. No serving or preparation of food or meals (other than minimum associated with wine sampling such as small amounts of cheese, bread, or fruit) is allowed. City of Newport Beach Planning Commission Resolution No. Page 12 of 14 8. The hours of operation shall be limited to 9:OOAM to 11:00PM daily. 9. The existing kitchen shall be maintained and utilized as a "Cold Kitchen" with no major cooking appliances (i.e. oven, cook top) allowed. 10. Approval does not permit the premises to operate as an eating and drinking establishment, restaurant, bar, tavern, cocktail lounge or night club as defined by the Municipal Code, nor maintain and operate as a bona fide eating place as defined by the Department of Alcohol Beverage Control. 11. A special events permit is required for any event or promotional activity outside the normal operational characteristics of this approval that would increase the expected occupancy beyond 29 patrons and 6 employees at any one time, including any other activities requiring such special events permit as set forth in the Newport Beach Municipal Code. A maximum of 6 events may be permitted annually. 12. No outdoor loudspeaker or paging system shall be permitted in conjunction with either the retail sale or wine tasting /educational seminars. 13. No live entertainment or dancing shall be permitted. 14. The owner /operator of the proposed use shall enter into an agreement to provide and maintain a minimum of 21 parking spaces within the Lido Marina Village Parking garage to be accessible at all times during the operation of the use. 15. This approval supersedes and rescinds Use Permit No. 2002 -034. 16. The alcoholic beverage outlet operator shall take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks and areas surrounding the alcoholic beverage outlet and adjacent properties during business hours, if directly related to the patrons of the subject alcoholic beverage outlet. If the operator fails to discourage or correct nuisances, the Planning Commission may review, modify or revoke this use permit in accordance with Chapter 20.96 of the Zoning Code. 17. The exterior of the alcoholic beverage outlet 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. 18. All owners, managers and employees serving or selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for selling alcoholic beverages. To qualify to meet the requirements of this section a certified program must meet the standards of the City of Newport Beach Planning Commission Resolution No. _ Page 13 of 14 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 these conditions within 180 days of the effective date of this Use Permit. 19. 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. 20. Loitering, open container, and other signs specified by the Alcoholic Beverage Control Act shall be posted as required by the ABC. 21. This use permit may be reviewed, modified or revoked by the Planning Commission or City Council should it be determined that the conditions of the use permit have been violated or 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. 22. 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 permit. 23. Should this business or either alcohol license be sold or otherwise come under different ownership or control, any future owners, operators or assignees shall be notified in writing of the conditions of this approval by either the current business owner /operator. Future owners, operators or assignees shall submit, within 30 days of transfer or sale of the business or alcohol license, a letter to the Planning Department acknowledging their receipt and acceptance of the limitations, restrictions and conditions of approval of this Use Permit. 24. Any changes in operational characteristics, hours of operations, expansion in area, or modification to the floor plan, shall require an amendment to this Use Permit or the processing of a new Use Permit. 25. 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. 26. The applicant or operator of the facility may provide valet attendant service for the use in conjunction with the Lido Marina Village parking garage. The applicant or operator shall prepare a valet operated parking plan to be reviewed and approved by the City Traffic Engineer prior to the commencement of the valet service use. City of Newport Beach Planning Commission Resolution No. Page 14 of 14 27. Delivery vehicles shall not park within the public right -of -way of Via Lido and Via Oporto. 28. Trash receptacles for patrons shall be conveniently located both inside and outside the proposed facility. 29. Trash generated by the business shall be screened from view from adjoining properties except when placed for pick -up by refuse collection agencies. 30. All signs shall conform to the provisions of Chapter 20.67 of the Municipal Code. 31. No temporary "sandwich" signs or similar temporary signs shall be permitted, either on -site or off -site, to advertise the establishment. 32. 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. Adequate access and exiting must be provided in accordance with the Building Code. 33. The operator of the facility shall be responsible for the control of noise generated by the subject facility. The noise generated by the proposed use shall comply with the provisions of Chapter 10.26 of the Newport Beach Municipal Code. 34. Upon evidence that noise generated by the project exceeds the noise standards established by Chapter 20.26 (Community Noise Control) of the Municipal Code, the Planning Director may require that the applicant or successor retain a qualified engineer specializing in noise /acoustics to monitor the sound generated by the establishment to develop a set of corrective measures necessary in order to insure compliance. 35. This approval shall expire unless exercised within twelve (12) months from the end of the appeal period as specified in Section 20.89.060 of the Newport Beach Municipal Code.