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Home My WebLink About02 CUP 09-017ITEM #2 Report to the Planning Commission DATE: OCTOBER 13, 2009 SUBJECT: CONDITIONAL USE PERMIT CUP 09-017 APPLICANT: GENGUS SANBORN BOUNCE ENTERTAINMENT LLC. P.O. BOX 8129 FOUNTAIN VALLEY, CA 92728 PROPERTY OWNER: VESTAR/KIMCO TUSTIN, L.P. VESTAR DEVELOPMENT COMPANY 7575 CARSON BLVD LONG BEACH, CA 90808 LOCATION: 2429 PARK AVENUE (LIFESTYLE CENTER) TUSTIN GENERAL PLAN: MCAS TUSTIN SPECIFIC PLAN ZONING: SP -1 — MCAS TUSTIN SPECIFIC PLAN DISTRICT NEIGHBORHOOD F PLANNING AREA 19 - COMMERCIAL ENVIRONMENTAL STATUS: THIS PROJECT IS CATEGORICALLY EXEMPT PURSUANT TO SECTION 15301 (CLASS 1) OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT REQUEST: A REQUEST FOR AUTHORIZATION TO ESTABLISH AND OPERATE AN INDOOR/OUTDOOR BOUTIQUE ENTERTAINMENT VENUE/NIGHTCLUB WITH LIVE ENTERTAINMENT AND A TYPE 48 ALCOHOLIC BEVERAGE CONTROL LICENSE FOR THE ON-SITE SALE OF GENERAL ALCOHOLIC BEVERAGES. RECOMMENDATION That the Planning Commission adopt Resolution No. 4127 approving Conditional Use Permit 09-017 to authorize the establishment of an indoor/outdoor boutique entertainment venue/nightclub with live entertainment and a Type 48 Alcoholic Beverage Control (ABC) License for the on-site sale of general alcoholic beverages at 2429 Park Avenue. CUP 09-017 October 13, 2009 Page 2 BACKGROUND On September 8, 2009, the Planning Commission held a public hearing to evaluate the application for Conditional Use Permit (CUP) 09-017 to establish and operate a boutique entertainment venue/nightclub within the District shopping center. Upon review of the application, the Planning Commission continued the item to the October 13, 2009, Planning Commission meeting. The Planning Commission requested that staff work with the project applicant to adjust the proposed conditions of approval to meet the needs of the applicant and address the concerns of the Planning Commission. The Commission also requested various conditions be added to the conditions of approval. The issues raised at the prior Planning Commission meeting included the following: 1) The applicant requested that the Planning Commission allow the business to sell tickets for regularly scheduled events. The Commission then directed staff to work with the applicant on developing a condition that would allow the business to operate as intended by the applicant. 2) The Planning Commission suggested minor text corrections to Resolution No. 4127 and proposed conditions of approval as follows: CUP 09-017 October 13, 2009 Page 3 • Define the term "boutique entertainment' to include "nightclub" and describe the primary and ancillary uses, daytime and nighttime; • Condition 2.2, include language referring to 'leaflets, flyers, posted bills, electronic notifications, etc.; • Condition 2.10, remove the word `licensed"; • Condition 2.9, provide more than one sign regarding proof of age; • Condition 3.12, add language adjusting hours of operation and reducing the hours if problems arise; • Add language to I.f "and according to the conditions herein"; 3) The Planning Commission requested that a condition be added to Resolution No. 4127, requiring the applicant to prepare an Operations Manual for the proposed business. 4) Concerns regarding the design of the facility, in particular, the outdoor deck area and potential noise issues for neighboring tenants prompted the Planning Commission to request that the applicant return before the Planning Commission at a future date for Design Review approval of the venue. Ticket Sales The applicant is requesting to operate a facility with the sole purpose of providing entertainment. Previously proposed conditions of Resolution No. 4127 restricted the facility from charging a cover charge or entrance fee and prohibited the sale of tickets. Staff typically places these conditions upon restaurants selling liquor or presenting live entertainment for the purpose of ensuring that a restaurant would remain primarily as a restaurant and not a nightclub. In the case of the Loft venue, the business would in fact primarily function as a nightclub. Accordingly, the proposed use has been conditioned appropriately to function as a nightclub. The applicant has indicated that it would not be economically viable for the business to operate Without the ability to charge an entrance fee or sell tickets for events. The primary function of the Loft would be music and dancing. As mentioned by the applicant, entrance fees/ticket sales to the live entertainment would help to offset the costs of providing the quality live entertainment. Without quality entertainment the venue would not stand out as a premier entertainment venue within Orange County. It is not the goal of the applicant or developer (Vestar) to operate the facility solely as a bar. The Loft, in addition to the Lifestyle Center as a whole was envisioned as a premiere entertainment venue within Tustin and Orange County that would accommodate uses such as the venue being proposed. The prior proposed tenant for the subject space was a comedy club that also would have required ticket sales as well as alcoholic beverage sales. The MCAS Tustin Specific Plan identifies the project site CUP 09-017 October 13, 2009 Page 4 for use as a nightclub. In addition, the Lifestyle Center of the District was specifically planned to accommodate a nightclub with approval of a conditional use permit. Staff proposes to eliminate the prohibition on an admission charge or a cover charge in prior Condition 2.3 of Resolution No. 4127 and also remove the sentence from prior Condition 3.2 which states, "No cover charges or tickets shall be sold for access to the live entertainment." Condition 3.12 has been proposed to allow the City to review all live entertainment events and events involving the sale of tickets to ensure that the proposed venue can accommodate said events and performers. Adequate security for live entertainment and events as determined by the City of Tustin Police Department has also been addressed in Condition 3.12 as well as in Conditions 2.16 through 2.19. Staff also proposes to retain Condition 1.8 which would allow for further review of the project should a nuisance be created as a result of the proposed use. The matter would then be brought back to the Planning Commission and City Council for appropriate action. The City of Tustin Police Department has reviewed and approved the proposed changes to allow an entrance fee and tickets sales subject to the conditions contained within Exhibit A of Resolution No. 4127. Minor Text Corrections At the September 8, 2009, meeting, the Planning Commission directed staff to make minor text corrections to Resolution No. 4127. • Staff has updated references to a "boutique entertainment venue" to now read "boutique entertainment venue/nightclub." • Finding I.F.: amended adding language stating "in accordance with the conditions contained herein." • Condition 2.2: amended to identify specifically prohibited forms of advertising which would promote excessive alcohol consumption. • Condition 2.8 (formerly 2.9): amended to require multiple signs within the venue indicating the requirement of patrons to show identification for alcoholic beverage service. • Condition 2.9 (formerly 2.10): amended to remove the word 'licensed." • Condition 3.12: amended section (a) by replacing the word "adjust' with "reduce." Operations Manual The Planning Commission requested at the September 8, 2009, meeting that a condition be added to Resolution No. 4127 requiring the applicant to produce an Operations Manual for the facility. Staff proposes the following Condition 2.22: CUP 09-017 October 13, 2009 Page 5 (7) 2.22 The applicant shall produce an Operations Manual to be retained on- site at the facility identifying the procedures and regulations for operating the proposed nightclub venue. Prior to building permit final or Certificate of Occupancy, the applicant shall submit said Operations Manual to the Community Development Department for review and approval. At a minimum, said Operations Manual shall contain the following items: (a) A copy of Planning Commission Resolution No. 4127 (b) A copy of the facility's live entertainment permit (c) A copy of the facility's alcohol license and conditions of approval (d) Sections of the California Business and Professions Code applicable to the operation of nightclubs and alcohol sales (e) Security policy and procedures (f) Employee training manual (g) Dress code criteria and protocol (h) Incident log Design Review The Planning Commission expressed concerns regarding the design of the proposed facility and the effect it may have on neighboring tenants within the Lifestyle Center of the District. In particular potential noise impacts due to the nature of the proposed venue. The Commission requested that staff condition the project to require Design Review approval by the Planning Commission at a future date. Since the prior public hearing, the applicant has submitted additional plans and information related to the tenant improvement for the facility. The applicant hopes that the information provided will be sufficient for the Planning Commission to review the project for any potential design issues and that any subsequent design review for the proposed venue can be administered by staff during the tenant improvements plan check phase of the project. The outdoor deck area is proposed as a walled -in space with the dimensions of twenty- five (25) feet by thirty-five (35) feet. The proposed wall will be of a wood slat material with seating for patrons at the base of the structure. There is a proposed one (1) foot planter box with a screenwall trellis for vine growth along the side of the deck which borders the existing parapet wall. The proposed deck area would overlay an existing corridor and tenant space (currently vacant) on the first floor. Conditions 1.1 and 1.9 require substantial conformance with the plans approved by the Planning Commission unless otherwise modified by the Community Development Director. Additional information and materials may be referenced in the applicant's submitted plans (Attachment B). CUP 09-017 October 13, 2009 Page 6 Rooftop Deck Wood Slat Fence Vine Trellis CUP 09-017 October 13, 2009 Page 7 Noise attenuation measures have already been incorporated into the existing structure per the property owner. According to the property owner there is a lightweight concrete slab on the floor of the second level. The concrete slab helps dampen the sound transfer between floors, and especially helps with low frequency sounds. In the web space between the floor joists there was additional batt insulation installed. The lay -in ceiling at Johnny Rockets also has a sound insulating factor and the "dead" space between the ceiling and floor joists also creates a sound barrier. Noise issues regarding the deck area are not as much of a concern to the first floor tenant space as there is not a dance floor in the exterior area and, pursuant to proposed Condition 3.6, the facility needs to comply with the City's noise ordinance. Outside address speakers, telephone bells, buzzers, and other similar devices, which are audible from adjoining properties, would be prohibited. Proposed Condition 3.12 has been amended to add section (f) requiring the applicant to provide noise attenuation measures should a noise problem arise. The tenant space below the proposed deck area is for retail purposes which would typically have different hours than the proposed boutique entertainment venue/nightclub. LL -1-- i i-HUA i i u I a- m I I l�� I I� f I dr•• � Floor Plan CUP 09-017 October 13, 2009 Page 8 FINDINGS In determining whether to approve the Conditional Use Permit for the proposed boutique entertainment venue/nightclub with a Type 48 ABC License and live entertainment located at 2429 Park Avenue within the Lifestyle Center at the District, the Planning Commission must determine whether or not the proposed use will be detrimental to the health, safety, morals, comfort, and general welfare of the persons residing in or working in the neighborhood or whether it will be injurious or detrimental to property or improvements in the vicinity or to the welfare of the City. A decision to approve this request as conditioned may be supported by the following findings: 1. The Lifestyle Center in the District was developed to allow the particular type of boutique entertainment venue/nightclub with live entertainment and alcohol sales as applied for and can reasonably accommodate such a use. 2. The typical hours of the proposed boutique entertainment venue/nightclub are compatible with other uses within the Lifestyle Center and the District. 3. No noise impacts are anticipated as there are no existing or planned residential uses within the immediate vicinity of the project site. Existing noise attenuation measures within the building would mitigate any impacts to neighboring tenants. 4. Based on the parking analysis for the District, it has been determined that there would be sufficient parking provided to accommodate the proposed use. 5. The project site is located within a redevelopment project area and the City of Tustin Redevelopment Agency has reviewed and approved the project. The Agency has determined that the proposed tenant is a Class A User as required by the Disposition and Development Agreement between Vestar and the City. 6. As conditioned, the presentation of live entertainment at the subject property would not be detrimental to the health, safety, morals, comfort, and general welfare of the City. 7. As conditioned, Conditional Use Permit 09-017 may be reviewed on an annual basis, or more often if necessary, by the Community Development Director. If the use is not operated in accordance with Conditional Use Permit 09-017 or is found to be a nuisance or negative impacts are affecting the surrounding uses, the Community Development Director would have the authority to impose additional conditions to eliminate the CUP 09-017 October 13, 2009 Page 9 nuisance or negative impacts or may initiate proceedings to revoke the Conditional Use Permit. 8. Pursuant to Section 3.8.4D of the MCAS Tustin Specific Plan, no sexually oriented businesses can be established within Planning Area 19 (the District). 9. The implementation/application of the proposed conditions would ensure compatibility of the proposed boutique entertainment venue with the surrounding uses and the Tustin City Code. Staff recommends that the Planning Commission adopt Resolution No. 4127 approving Conditional Use Permit 09-017 to establish an indoor/outdoor boutique entertainment venue/nightclub with a Type 48 ABC License and live entertainment at 2429 Park Avenue within the Lifestyle Center at the District at Tustin Legacy. R ari Swiont k A ociate Planner Elizabeth A. Binsack Community Development Director Attachments: A. Staff Report dated September 8, 2009 B. Submitted Plans C. Revised Resolution No. 4127 ATTACHMENT A STAFF REPORT DATED 09/08/09 Report to the Planning Commission DATE: SEPTEMBER 8, 2009 SUBJECT: CONDITIONAL USE PERMIT CUP 09-017 APPLICANT: GENGUS SANBORN BOUNCE ENTERTAINMENT LLC. P.O. BOX 8129 FOUNTAIN VALLEY, CA 92728 PROPERTY OWNER: VESTAR/KIMCO TUSTIN, L.P. VESTAR DEVELOPMENT COMPANY 7575 CARSON BLVD LONG BEACH, CA 90808 LOCATION: 2429 PARK AVENUE (LIFESTYLE CENTER) TUSTI N GENERAL PLAN: MCAS TUSTIN SPECIFIC PLAN ZONING: SP -1 — MCAS TUSTIN SPECIFIC PLAN DISTRICT NEIGHBORHOOD F PLANNING AREA 19 - COMMERCIAL ENVIRONMENTAL STATUS: THIS PROJECT IS CATEGORICALLY EXEMPT PURSUANT TO SECTION 15301 (CLASS 1) OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT REQUEST: A REQUEST FOR AUTHORIZATION TO ESTABLISH AND OPERATE AN INDOOR/OUTDOOR BOUTIQUE ENTERTAINMENT VENUE WITH LIVE ENTERTAINMENT AND A TYPE 48 ALCOHOLIC BEVERAGE CONTROL LICENSE FOR THE ON-SITE SALE OF GENERAL ALCOHOLIC BEVERAGES. RECOMMENDATION That the Planning Commission adopt Resolution No. 4127 approving Conditional Use Permit 09-017 to authorize the establishment of an indoor/outdoor boutique entertainment venue with live entertainment and a Type 48 Alcoholic Beverage Control (ABC) License for the on-site sale of general alcoholic beverages at 2429 Park Avenue. CUP 09-017 September 8, 2009 Page 2 BACKGROUND The proposed boutique entertainment venue will be in the District shopping center at Tustin Legacy, located at the northwest corner of the intersection of Jamboree Road and Barranca Parkway. The District at Tustin Legacy is zoned as Specific Plan 1 (SP -1) MCAS Tustin Specific Plan and comprises Planning Areas 16, 17, and 19 (Neighborhood F). The District shopping center comprises over a million square feet of retail and restaurant commercial uses. The proposed boutique entertainment venue would be located above the Johnny Rocket's restaurant and Madison Bleu shop within the Lifestyle Center. The subject tenant space was originally planned as a comedy club venue; however, the space was never developed as such. The Lifestyle Center is a pedestrian oriented portion of the District which has an emphasis on entertainment attractions in addition to retail and restaurant uses. The Lifestyle Center of the District is located within Planning Area 19 which allows for an assortment of commercial uses, including restaurants, retail, and service commercial uses. Unique attraction uses within the Lifestyle Center include facilities such as bowling alleys and movie theaters. It has been approximately two years since the first stores at the District in Tustin Legacy opened their doors. All proposed building pads have been constructed and the center is built out. The proposed boutique entertainment venue would be one of the last two CUP 09-017 September 8, 2009 Page 3 remaining tenant improvements for the District shopping center. All other tenant spaces have been occupied and improved. Pursuant to Section 3.8.4.A2 of the MCAS Tustin Specific Plan, on-site alcoholic beverage sales establishments including bars, taverns, and cocktail lounges require approval of a conditional use permit. On-site alcoholic beverage sales establishments within Planning Area 19 (subject property) are not subject to distancing requirements pursuant to Section 3.14.2.131 of the MCAS Tustin Specific Plan. Section 3231 of the Tustin City Code (TCC) requires approval of a live entertainment permit prior to establishing, setting up, maintaining, conducting, or carrying on any live entertainment for pay or for no charge. In accordance with Section 9270b(e) of the TCC presentation of live entertainment also requires approval of a Conditional Use Permit. In addition, sexually oriented businesses are prohibited within Planning Area 19 of the MCAS Tustin Specific Plan. I-- ' J k u. _� 1 'The LUistl ict At.Tustip Leery Surrounding Properties Q RECEIVED luL P 3 ZMO cftklymml The District is bounded by Tustin Ranch Road to the north and west, Jamboree Road to the east, and Barranca Parkway to the south. Commercial and industrial uses lie to the south and east of the project site across Jamboree Road and Barranca Parkway in the City of Irvine. Land to the north and west of the project site is also located within the MCAS Tustin Specific Plan and is currently being planned to accommodate a wide variety of mixed uses. CUP 09-017 September 8, 2009 Page 4 Public Noticing A public hearing notice identifying the time, date, and location of the public hearing for the proposal was published in the Tustin News on August 27, 2009. Property owners within 300 feet of the site were notified of the hearing by mail; a hearing sign was posted on the site and a public hearing notice was posted at City Hall on August 27, 2009. The applicant was informed of the availability of the agenda and staff report for this item. DISCUSSION Boutique Entertainment Venue The applicant is proposing to establish and operate a boutique entertainment venue, "The Loft," which will consist of an indoor and outdoor area. The tenant space is 3,733 square feet in size and is located on the second level of Building 3 directly above the Johnny Rocket's restaurant and Madison Bleu shop. A rooftop deck on the single story portion of the building would serve as an 843 square foot outdoor area for the venue. The venue proposes to host both public and private events with multiple functions such as mixers, wedding receptions, fundraisers, charity events, and other social events based on days and operational hours. However, the venue would function primarily as a nightclub with dancing during evening hours. The applicant plans to create a modern, yet sophisticated setting that provides local business professionals a place to unwind after work. The floor plans of the proposed venue can be referenced in Attachment D — Submitted Plans. Nn o- CUP 09-017 September 8, 2009 Page 5 The applicant is proposing to implement a dress code which would vary based on the event. In general, during the hours between 5:00 p.m. to 9:00 p.m. more casual dress would be allowed while evening events after 9:00 p.m. would require a more stringent dress code. Themed events and sponsored events would be an exception to the typical dress code policy. The applicant's goal is to restrict open toed shoes and shorts for men, baggy or excessively loose clothing, and all gang apparel as well as baseball caps. Security for the venue will be provided by the applicant and the amount of security would be largely dependent upon the type of event occurring. In addition to internal security for the venue, the District does provide security for the shopping center. The City of Tustin Police Department has reviewed and approved the proposed use subject to the conditions of approval contained within Exhibit A of Resolution No. 4127. Hours of Operation/Parking The proposed hours of operation for the venue are 5:00 p.m. to 2:00 a.m. and are limited to that timeframe per the parking analysis for the District. The hours of operation are consistent with other uses within the Lifestyle Center of the District. The proposed boutique entertainment venue is similar in nature to a comedy club in that the hours of operation are similar; they are both assembly type uses; and they both provide entertainment as a primary function. As previously mentioned the proposed use would occupy a tenant space originally slated for a comedy club. LLG traffic engineers prepared the parking analysis for the District and have concluded that "the Loft" would be similar to the comedy club, sufficient parking would be provided, and that the results of the parking analysis are still valid. Alcohol License A Type 48 Alcoholic Beverage Control (ABC) License has been requested by the applicant in conjunction with the entertainment venue. Pursuant to the ABC, a Type 48 license authorizes the sale of beer, wine, and distilled spirits for consumption on the premises where sold; the sale of beer and wine for consumption off the premises where sold; minors are not allowed to enter and remain; and food service is not required. The Type 48 license is the same license as a bar, nightclub, or tavern would require. There are concerns regarding the sale of alcohol for off-site consumption in conjunction with a nightclub type attraction and the potential it creates for unregulated activities outside of the venue, in particular the parking lot. Condition 2.4 of Resolution No. 4127 would prohibit the sale of alcoholic beverages for consumption off the premises. It is not a requirement of this license to serve food at the establishment and the applicant does not intend to prepare food on the premises. According to the applicant, any food on-site would be catered or prepared off-site. CUP 09-017 September 8, 2009 Page 6 There are other entertainment establishments within the District that serve alcoholic beverages; however, all of their alcohol licenses are in conjunction with bona fide public eating places (restaurants). The proposed venue is compatible with these types of uses which make the Lifestyle Center a destination entertainment venue. In addition the originally proposed comedy club would have required the same Type 48 ABC license as proposed by the current applicant. Live Entertainment Other entertainment venues within the Lifestyle Center include numerous restaurants, Strike bowling alley, AMC movie theaters, and regularly scheduled live entertainment events such as live music, art shows, and fashion shows within the courtyard area as approved by the Planning Commission on August 26, 2008. The applicant is requesting a live entertainment permit to host concert events at the venue involving live performances as well as comedy shows, art exhibits, fashion shows, and dance and dramatic performances. The applicant is also proposing to have disc jockeys and dancing which are exempt from the live entertainment permit. Upon approval of a CUP for the presentation of live entertainment, the applicant shall obtain a live entertainment permit issued by the Director of Community Development. The live entertainment permit is non -transferable and any modifications to the proposed live entertainment permit would require approval of the Community Development Director. Noise The Lifestyle Center is located essentially in the middle of the District shopping center and is surrounded by parking and additional commercial buildings beyond that. The District itself is located between the three major arterial roads: Barranca Parkway, Jamboree Road, and Tustin Ranch Road. No noise impacts are anticipated due to the fact that there are no residential uses existing or planned in the immediate vicinity of the Lifestyle Center within the District. In addition, it should be recognized that medium high density and low density residential development is proposed within the core areas of Tustin Legacy north of Tustin Ranch Road in Neighborhoods D and G (see Attachment C — MCAS Tustin Site Plan). Pursuant to proposed Condition 3.6 of Resolution No. 4127, the proposed live entertainment shall not exceed noise standards set forth in the City of Tustin Noise Ordinance. Redevelopment Agency The project site is located within a Redevelopment Agency Review area and the City of Tustin Redevelopment Agency has reviewed and approved the proposed use. The Agency has determined that the proposed tenant and use is a Class A tenant as required by the Disposition and Development Agreement and that the proposed use will be consistent with the other Class A tenants at The District. Entertainment CUP 09-017 September 8, 2009 Page 7 venues such as the one being proposed are encouraged by the Redevelopment Agency within the Lifestyle Center to create a vibrant and active atmosphere. FINDINGS In determining whether to approve the Conditional Use Permit for the proposed boutique entertainment venue with a Type 48 ABC License and live entertainment located at 2429 Park Avenue within the Lifestyle Center at the District, the Planning Commission must determine whether or not the proposed use will be detrimental to the health, safety, morals, comfort, and general welfare of the persons residing in or working in the neighborhood or whether it will be injurious or detrimental to property or improvements in the vicinity or to the welfare of the City. A decision to approve this request as conditioned may be supported by the following findings: 1. The Lifestyle Center in the District was developed to allow the particular type of boutique entertainment venue with live entertainment and alcohol sales as applied for and can reasonably accommodate such a use. 2. The typical hours of the proposed boutique entertainment venue are compatible with other uses within the Lifestyle Center and the District. 3. No noise impacts are anticipated as there are no existing or planned residential uses within the immediate vicinity of the project site. 4. Based on the parking analysis for the District, it has been determined that there would be sufficient parking provided to accommodate the proposed use. 5. The project site is located within a redevelopment project area and the City of Tustin Redevelopment Agency has reviewed and approved the project. The Agency has determined that the proposed tenant is a Class A User as required by the Disposition and Development Agreement between Vestar and the City. 6. As conditioned, the presentation of live entertainment at the subject property would not be detrimental to the health, safety, morals, comfort, and general welfare of the City. 7. As conditioned, Conditional Use Permit 09-017 may be reviewed on an annual basis, or more often if necessary, by the Community Development Director. If the use is not operated in accordance with Conditional Use Permit 09-017 or is found to be a nuisance or negative impacts are affecting the surrounding uses, the Community Development Director would have the authority to impose additional conditions to eliminate the CUP 09-017 September 8, 2009 Page 8 nuisance or negative impacts or may initiate proceedings to revoke the Conditional Use Permit. 8. Pursuant to Section 3.8.4D of the MCAS Tustin Specific Plan, no sexually oriented businesses can be established within Planning Area 19 (the District). 9. The implementation/application of the proposed conditions would ensure compatibility of the proposed boutique entertainment venue with the surrounding uses and the Tustin City Code. Staff recommends that that the Planning Commission adopt Resolution No. 4127 approving Conditional Use Permit 09-017 to establish an indoor/outdoor boutique entertainment venue with a Type 48 ABC License and live entertainment at 2429 Park Avenue within the Lifestyle Center at the District at Tustin Legacy. Ryap,SwionteO Elizabeth A. Binsack Associate Planner Community Development Director Attachments: A. Location Map B. Land Use Fact Sheet C. MCAS Tustin Site Plan D. Submitted Plans E. Resolution No. 4127 ATTACHMENT A I>UiZf1_1 i [s] I,[JtF_1 LOCATION MAP PROJECT NO.: CUP 09-017 ADDRESS: 2429 PARK AVE. (LIFESTYLE CENTER AT THE DISTRICT) 9,0 300'. Q 4q zaaxaw.w cmvm..NET i i it ii ' i S i � a[ F Y� J / \v � f (CI eAx O�.wwGmCme.NEt pOH.?�.I ATTACHMENT B LAND USE FACT SHEET LAND USE APPLICATION FACT SHEET 1. LAND USE APPLICATION NUMBER(S): CONDITIONAL USE PERMIT (CUP) 09-017 2. LOCATION: THE DISTRICT a) TUSTIN LEGACY — LIFESTYLE CENTER 3. ADDRESS: 2429 PARK AVE. 4. TRACT: 16695 5. APN:434-441-16 6. PREVIOUS OR CONCURRENT APPLICATIONS RELATING TO THIS PROPERTY: DDA 04-002, CP 04-001, DR 04-010, VAR 04-002, CUP 04-015, CUP 07-010, CUP 08-009. 7. SURROUNDING LAND USES: NORTH: VACANT (HANGAR) SOUTH: COMMERCIAL - INDUSTRIAL WEST: VACANT EAST: INDUSTRIAL 8. SURROUNDING ZONING DESIGNATION: NORTH: MCAS TUSTIN SPECIFIC PLAN (SP -1) SOUTH: CITY OF IRVINE WEST: MCAS TUSTIN SPECIFIC PLAN (SP -1) EAST: CITY OF IRVINE 9. SURROUNDING GENERAL PLAN DESIGNATION: NORTH: MCAS TUSTIN SPECIFIC PLAN SOUTH: CITY OF IRVINE WEST: MCAS TUSTIN SPECIFIC PLAN EAST: CITY OF IRVINE 10. SITE LAND USE: A. EXISTING: SHOPPNG CENTER (COMMERCIAL) PROPOSED: SAME B. GENERAL PLAN: MCAS TUSTIN SPECIFIC PLAN PROPOSED: SAME C. ZONING: MCAS TUSTIN SPECIFIC PLAN (SP -1) PROPOSED: SAME DEVELOPMENT FACTS: NO CHANGE TO EXISTING DEVELOPMENT 11. LOT AREA: 111.77 GROSS ACRES 12. RETAIL AREA: 1,045.619 SQUARE FEET 13. PARKING: SHARED PARKING ANALYSIS ATTACHMENT C ►fi' OR31L 4k142A_1T a � u • C C m Vi h Y yC - ii P, tY � � �W � y O J � Y H N d 44N Q� _ •y 3 2y-S J b Z• a a a Sa a' c z qq� o '�'"r of S rc� v u i u w d5a�n FAIN . . . . .f+ . . • . 3Y� ��jjII pl z° S 64 i b 'J F RIB LU VAC � iiEL`SFri' N ATTACHMENT D SUBMITTED PLANS )! J • |�| !||,}| { |||!k ||| H ! Jill k ;, .. \ ! ! 4 ql�H ; LLM !|� i | ==J LMLJ z£g cm £5£- Ell E co') a5 s y aa£' Jim `g LU Ffat9 a� 2NMI / 2I piƒP� §( C= |k \ \ Vim /em � ( cc , 7 ƒƒƒ| |� i ATTACHMENT E RESOLUTION NO. 4127 RESOLUTION NO. 4127 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN, APPROVING CONDITIONAL USE PERMIT 09-017 AUTHORIZING THE ESTABLISHMENT OF A BOUTIQUE ENTERTAINMENT VENUE WITH A TYPE 48 ALCOHOLIC BEVERAGE CONTROL LICENSE AND LIVE ENTERTAINMENT LOCATED AT 2429 PARK AVENUE WITHIN THE LIFESTYLE CENTER OF THE DISTRICT SHOPPING CENTER AT TUSTIN LEGACY. The Planning Commission does hereby resolve as follows: The Planning Commission finds and determines as follows: A. A proper application, Conditional Use Permit 09-017, was filed by Gengus Sanborn of Bounce Entertainment LLC., requesting authorization to establish and operate a boutique entertainment venue with a Type 48 Alcoholic Beverage Control (ABC) License and live entertainment at 2429 Park Avenue within the Lifestyle Center of the District shopping center at Tustin Legacy. B. That the MCAS Tustin Specific Plan zoning designation and General Plan land use designation provide for a variety of commercial and entertainment uses. In addition, the project has been reviewed for consistency with the Air Quality Sub -element of the City of Tustin General Plan and has been determined to be consistent with the Air Quality Sub -element. C. That pursuant to Section 3.8.4.A2 of the MCAS Tustin Specific Plan, on- site alcoholic beverage sales establishments including bars, taverns, and cocktail lounges require approval of a conditional use permit. Pursuant to Section 3.14.2.131 of the MCAS Tustin Specific Plan, on-site alcoholic beverage sales establishments within Planning Area 19 (subject property) are not subject to distancing requirements. D. That pursuant to Section 9270b(e) of the Tustin City Code, presentation of live entertainment requires approval of a conditional use permit. E. That a public hearing was duly called, noticed, and held for said application on September 8, 2009, by the Planning Commission, F. That the establishment, maintenance, and operation of the proposed use will not, under the circumstances of this case, be detrimental to the health, safety, morals, comfort, or general welfare of the persons residing or working in the neighborhood, nor be injurious or detrimental to the property and improvements in the neighborhood of the subject property, or to the general welfare of the City of Tustin in that: Resolution No. 4127 Page 2 1. The Lifestyle Center in the District was developed to allow the particular type of boutique entertainment venue with live entertainment and alcohol sales as applied for and can reasonably accommodate such a use. 2. The typical hours of the proposed boutique entertainment venue are compatible with other uses within the Lifestyle Center and the District. 3. No noise impacts are anticipated as there are no existing or planned residential uses within the immediate vicinity of the project site. 4. Based on the parking analysis for the District, it has been determined that there would be sufficient parking provided to accommodate the proposed use. 5. The project site is located within a redevelopment project area and the City of Tustin Redevelopment Agency has reviewed and approved the project. The Agency has determined that the proposed tenant is a Class A User as required by the Disposition and Development Agreement between Vestar and the City. 6. As conditioned, the presentation of live entertainment at the subject property would not be detrimental to the health, safety, morals, comfort, and general welfare of the City. 7. As conditioned, Conditional Use Permit 09-017 may be reviewed on an annual basis, or more often if necessary, by the Community Development Director. If the use is not operated in accordance with Conditional Use Permit 09-017 or is found to be a nuisance or negative impacts are affecting the surrounding uses, the Community Development Director would have the authority to impose additional conditions to eliminate the nuisance or negative impacts or may initiate proceedings to revoke the Conditional Use Permit. 8. Pursuant to Section MAD of the MCAS Tustin Specific Plan, no sexually oriented businesses can be established within Planning Area 19 (the District). 9. The implementation/application of the proposed conditions would ensure compatibility of the proposed boutique entertainment venue with the surrounding uses and the Tustin City Code. Resolution No. 4127 Page 3 G. This project is Categorically Exempt pursuant to Section 15301, Class 1 of the California Code of Regulations (Guidelines for the California Environmental Quality Act). II. The Planning Commission hereby approves Conditional Use Permit 09-017 authorizing the establishment of a boutique entertainment venue with a Type 48 ABC License and live entertainment at 2429 Park Avenue within the Lifestyle Center of the District shopping center at Tustin Legacy, subject to the conditions contained within Exhibit A attached hereto. PASSED AND ADOPTED by the Planning Commission of the City of Tustin at a regular meeting on the 8th day of September, 2009. CHARLES E. PUCKETT Chairperson ELIZABETH A. BINSACK Planning Commission Secretary STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) I, Elizabeth A. Binsack, the undersigned, hereby certify that I am the Planning Commission Secretary of the City of Tustin, California; that Resolution No. 4127 was duly passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 8th day of September, 2009. ELIZABETH A. BINSACK Planning Commission Secretary EXHIBIT A RESOLUTION NO. 4127 CONDITIONAL USE PERMIT 09-017 CONDITIONS OF APPROVAL GENERAL (1) 1.1 The proposed project shall substantially conform with the submitted plans for the project date stamped September 8, 2009, on file with the Community Development Department, as herein modified, or as modified by the Director of Community Development in accordance with this Exhibit. The Director of Community Development may also approve subsequent minor modifications to plans during plan check if such modifications are consistent with provisions of the Tustin City Code. (1) 1.2 This approval shall become null and void unless the use is established within twelve (12) months of the date of this Exhibit. Time extensions may be granted if a written request is received by the Community Development Department within thirty (30) days prior to expiration. (1) 1.3 All conditions in this Exhibit shall be complied with subject to review and approval by the Community Development Department. (1) 1.4 Approval of Conditional Use Permit 09-017 is contingent upon the applicant and property owner signing and returning to the Community Development Department a notarized "Agreement to Conditions Imposed" form and the property owner signing and recording with the County Clerk -Recorder a notarized "Notice of Discretionary Permit Approval and Conditions of Approval' form. The forms shall be established by the Director of Community Development, and evidence of recordation shall be provided to the Community Development Department. (1) 1.5 Any violation of any of the conditions imposed is subject to the issuance of an Administrative Citation pursuant to Tustin City Code Section 1162(a). (1) 1.6 The applicant shall be responsible for costs associated with any necessary code enforcement action, including attorney fees, subject to the applicable notice, hearing, and appeal process as established by the City Council by ordinance. SOURCE CODES (1) STANDARD CONDITION (5) (2) CEQA MITIGATION (6) (3) UNIFORM BUILDING CODE/S (7) (4) DESIGN REVIEW *** RESPONSIBLE AGENCY REQUIREMENT LANDSCAPING GUIDELINES PC/CC POLICY EXCEPTION Exhibit A Resolution No. 4127 Page 2 (1) 1.7 As a condition of approval of Conditional Use Permit 09-017, the applicant shall agree, at its sole cost and expense, to defend, indemnify, and hold harmless the City, its officers, employees, agents, and consultants, from any claim, action, or proceeding brought by a third party against the City, its officers, agents, and employees, which seeks to attack, set aside, challenge, void, or annul an approval of the City Council, the Planning Commission, or any other decision-making body, including staff, concerning this project. The City agrees to promptly notify the applicant of any such claim or action filed against the City and to fully cooperate in the defense of any such action. The City may, at its sole cost and expense, elect to participate in defense of any such action under this condition. (1) 1.8 Conditional Use Permit 09-017 may be reviewed annually or more often, if deemed necessary by the Community Development Director on the Community Development Director's own initiative or in consultation with the Police Chief or the Director of Public Works, to ensure compatibility with the area and compliance with the conditions of approval contained in this Resolution and related Exhibits ("conditions of approval"). If the Community Development Director, either on the Director's own initiative or after consulting with the Police Chief and/or the Director of Public Works, determines that there is evidence that the use is being operated in a manner inconsistent with the conditions of approval or is creating a nuisance or otherwise negatively or detrimentally affecting nearby tenants or the neighborhood, the Community Development Director shall set the matter for hearing before the Planning Commission and the City Council as provided under Tustin City Code Section 9293. At the conclusion of such hearing, the City Council after making the finding specified in Tustin City Code Section 9293(c)(1), as may be amended from time to time, may either revoke the permit or impose additional conditions as the City Council may reasonably determine necessary or convenient to eliminate any nuisance or minimize any negative impacts. (1) 1.9 No change or alteration of the tenant space shall substantially occur from the approved plans dated September 8, 2009, or the original spirit and intent of this approval without prior approval of the Community Development Director. Modifications to the floor area including removal of fixed seats, services, and/or operation of the business may require consideration of a new Conditional Use Permit. ALCOHOL RESTRICTIONS (1) 2.1 Sales or consumption of alcoholic beverages shall be permitted only between the hours of 5:00 p.m. and 1:45 a.m. each day of the week unless modified by the Director of Community Development. Exhibit A Resolution No. 4127 Page 3 (1) 2.2 There shall be no promotions encouraging intoxication or drinking contests or advertisements indicating 'Buy one drink, get one free," "Two for the price of one," or "All you can drink for ..." or similar language. (1) 2.3 Licensee(s) shall not require an admission charge or a cover charge, nor shall there be a requirement to purchase a minimum number of drinks. (1) 2.4 The sale of alcoholic beverages for consumption off the premises is prohibited, with the exception of private special events during the hours of 5:00 p.m. to 10:00 p.m. (1) 2.5 There shall be no exterior advertising or sign of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages. Interior displays of alcoholic beverages or signs which are clearly visible to the exterior shall constitute a violation of this condition. (1) 2.6 Controls shall be established to maintain occupancy levels allowed by the Orange County Fire Authority and those Fire Department approved levels will not be exceeded. Methods of controlling occupancy can include, but not be limited to the following: • Counters used to count the number of occupants entering and exiting the location which are available for inspection by OCFA or the Police Department. (1) 2.7 Except in case of emergency, the licensee shall not permit its patrons to enter or exit the licensed premises through any entrance/exit other than the primary entrance/exit. Steps shall be taken by the licensee to discourage unauthorized exiting. (1) 2.8 Aisles and hallways shall be kept clear in order to allow patrons to move freely about the licensed premises. (1) 2.9 All patrons who appear under the age of 30 shall be required to show some form of identification or they will not be served an alcoholic beverage. A sign indicating this policy shall be prominently posted in a place that is clearly visible to patrons. Only the following forms of identification will be acceptable: a. Valid driver's license; b. Valid State identification card; c. Valid passport; d. Current military identification; e. U.S. Government immigrant identification card Exhibit A Resolution No. 4127 Page 4 All forms of out-of-state identification shall be checked by the authorized representative of the owner of the licensed premises in the Driver's License Guide. Upon presentation to the authorized representative of the owner of the licensed premises, the patron's form of identification shall be removed from the patron's wallet or any plastic holder and inspected for any alterations through a close visual inspection and/or use of a flashlight or "Retro -reflective viewer." (1) 2.10 Persons who appear obviously intoxicated shall not be admitted into the licensed premises. (1) 2.11 Patrons who appear obviously intoxicated shall not be served any alcoholic beverages. (1) 2.12 There shall be no "stacking" of drinks, i.e., more than one drink at a time, to a single patron. (1) 2.13 When serving pitchers exceeding 25 ounces of an alcoholic drink, all patrons receiving such pitcher, as well as all patrons who will be consuming all or any portion of such pitcher, shall present an ID to the server if appearing to be under the age of 30, if not previously checked at the entrance to the licensed premises. (1) 2.14 Oversized containers or pitchers containing in excess of 25 ounces of an alcoholic drink shall not be sold to a single patron for their sole consumption. (1) 2.15 Any patron who (1) fights or challenges another person to fight, (2) maliciously and willfully disturbs another person by loud or unreasoned noise, or (3) uses offensive words which are inherently likely to provoke an immediate violent reaction shall be removed from the premises. (1) 2.16 An incident log shall be maintained at the licensed premises on a continual basis with at least one year of entries and be readily available for inspection by a police officer. The log is for recording any physical altercations, injuries, and objectionable conditions that constitute a nuisance occurring in, on, or at the licensed premises, including the immediately adjacent area that is owned, leased, or rented by the licensee. The log will indicate date, time, description of incident, and action taken. "Objectionable conditions that constitute a nuisance" means disturbance of the peace, public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, loitering, public urination, lewd conduct, drug trafficking, or excessive loud noise. (1) 2.17 The Police Department may require State licensed security guards to perform crowd control inside and outside of the establishment, based upon the type of activities anticipated at the location or based upon prior history of activity at this establishment or other similar businesses. Exhibit A Resolution No. 4127 Page 5 (1) 2.18 Security personnel required by the Conditional Use Permit issued for the licensed premises shall be in a uniform or clothing which is readily identifiable as a security person. They shall maintain order and enforce the establishment's no loitering policy, and shall take "reasonable steps" (as that term is defined in subparagraph (3) of Section 24200 of the California Business and Professions Code) to correct objectionable conditions that constitute a nuisance, including clearing the parking lot in a timely manner at closing time. (1) 2.19 Employees and contract security personnel shall not consume any alcoholic beverages during their work shift. (1) 2.20 The owner or manager of the licensed premises shall maintain on the premises a written security policy and procedures manual addressing at a minimum the following items: • Handling obviously intoxicated persons; • Establishing a reasonable ratio of employees to patrons, based upon activity level, in order to monitor beverage sales and patron behavior; • Handling patrons involved in fighting or arguing; • Handling loitering about the building and in the immediate adjacent area that is owned, leased, rented or used under agreement by the Licensee(s); • Verifying age/checking identification of patrons; • Warning patrons of reaching their drinking limit/potential intoxication and refusing to serve; and • Calling the police regarding observed or reported criminal activity. (1) 2.21 Contract security services, proprietary security personnel, or personnel assuming the functions typically associated with security shall be familiar with the establishment's written security policy and procedures; by reviewing them and signing they have read and understood the policy. The signed acknowledgement shall be kept in file relating to the security manual. (1) 2.22 The owner or manager of the licensed premises shall notify the Chief of Police or his designee, at least Ten (10) days in advance of a special promotion or special event scheduled at the licensed premises. (1) 2.23 A file containing the names and dates of employment of every person who serves alcoholic beverages for consumption by patrons on the licensed premises and every manager, which file shall also include a copy of each person's certificate of completion of the Department of Alcohol Beverage Control L.E.A.D. course (Licensee Education on Alcohol and Drugs). Upon request, said file shall be made available for review to representative of the Police Department of the City of Tustin. Exhibit A Resolution No. 4127 Page 6 LIVE ENTERTAINMENT RESTRICTIONS (1) 3.1 No sexually oriented businesses shall be established within the project site pursuant to Section 3.8.4D of the MCAS Tustin Specific Plan. (1) 3.2 There shall be no special events sponsored by or involving an outside promoter or any other person other than the applicant. No cover charges or tickets shall be sold for access to the live entertainment. The building may not be sublet to a separate business or promoter or person other than the applicant. (1) 3.3 A Live Entertainment Permit shall be obtained through the Business License Division prior to establishing, conducting, or carrying on any live entertainment. The Live Entertainment Permit shall be non -transferable to any person(s). (1) 3.4 No business operating with a valid Live Entertainment Permit shall employ any person who has been convicted of illegal drug usage, drug dealing, or prostitution within the last five (5) years. (1) 3.5 The live entertainment shall be conducted in a manner that does not create a public or private nuisance. Any such nuisance must be abated immediately upon notice by the City of Tustin. (1) 3.6 The ambient noise levels resulting from the live entertainment shall not exceed the standards of the City of Tustin Noise Ordinance. Outside address speakers, telephone bells, buzzers, and other similar devices, which are audible from adjoining properties, shall be prohibited. (1) 3.7 All litter shall be removed from the exterior areas around the premises, including adjacent public sidewalk areas and parking areas, no less frequently than once each day that live entertainment is performed. (1) 3.8 Fire and Police access and passage shall be permitted at all times. (1) 3.9 Exterior public pay telephones shall be prohibited and interior public pay phones shall be programmed to prevent incoming calls. (1) 3.10 "No Loitering" signs shall be placed near the entrance on the outside of the premises. No congregation and loitering outside the building shall be permitted. (1) 3.11 No outdoor storage shall be permitted except as approved by the Tustin Community Development Director. (1) 3.12 If in the future the City's Community Development Director, Police Chief, and/or Public Works Department determine that a parking, traffic, or noise Exhibit A Resolution No. 4127 Page 7 problem exists on the site or in the vicinity as a result of the facility, the Community Development Director, Police Chief, and/or Public Works Department may require that the applicants to prepare a parking demand analysis, traffic study, or noise analysis and the applicants shall bear all associated costs. If said study indicates that there is inadequate parking or a traffic or noise problem, the applicants shall be required to provide mitigation measures to be reviewed and approved by the Community Development Department, Police Chief, and/or Public Works Department. Said mitigation measures may include, but are not limited to, the following: (a) Adjust hours of operation. (b) Eliminate live entertainment. (c) Reduce the number/frequency of performers. (d) Require additional on-site security personnel. (e) Provide additional parking. BUILDING DIVISION (1) 4.1 At the time of building permit application, the plans shall comply with the 2007 California Building Code (CBC), 2007 California Mechanical Code (CMC), 2007 California Plumbing Codes (CPC), 2007 California Electrical Code (CEC), California Title 24 Accessibility Regulations, 2005 Title 24 Energy Regulations, City Ordinances, and State and Federal laws and regulations 2005 Edition. (1) 4.2 At the time of plan submittal provide: • Seven (7) set of plans including building, electrical, mechanical, and plumbing plans. • Two sets of structural calculations (when applicable). • Two sets of Title 24 energy calculations for outdoor lighting (when applicable). (1) 4.3 The plans submitted shall indicate that restrooms are accessible to persons with disabilities as per State of California Accessibility Standards (Title 24). Plumbing fixture units are required to comply with the 2007 California Plumbing Code Chapter 4, Table 4-1 as per type of group occupancy, or as approved by the Building Official. (1) 4.4 Prior to permit issuance, clearances will be required from the Orange County Health Department and Orange County Fire Authority, . (1) 4.5 Vehicle parking, primary entrance(s) to the site and building, the primary paths of travel building entrance, cashier space, sanitary facilities, drinking fountain, and public telephones shall be accessible to persons with disabilities and shall be shown on the plans. Exhibit A Resolution No. 4127 Page 8 PUBLIC WORKS DEPARTMENT (1) 5.1 Construction and Demolition Waste Recycling and Reduction Plan (WRRP). A. The applicant/contractor is required to submit a WRRP to the Public Works Department. The WRRP must indicate how the applicant will comply with the City's requirement (City Code Section 4351, et al) to recycle at least 50 percent of the project waste material. B. The applicant will be required to submit a $50.00 application fee and a cash security deposit. Based on the review of the submitted Waste Management Plan, the cash security deposit will be determined by the Public Works Department in an amount not to exceed five percent of the project's valuation. C. Prior to issuance of any permit, the applicant shall submit the required security deposit in the form of cash, cashier's check, personal check, or money order made payable to the "City of Tustin." ORANGE COUNTY FIRE AUTHORITY (5) 6.1 Architectural Building Plans Service Codes: PR200-285 (New Construction Architectural Review) Prior to the issuance of a building permit, the applicant shall submit architectural plans for the review and approval of the Fire Chief. The applicant should be aware that all requirements regarding building construction and exiting shall be in compliance with the 2007 California Building Code (CBC), specifically Table 503 and Chapter 10. It is recommended that the applicant submit the architectural building plans as soon as possible to ensure that all exiting and construction requirements are addressed. (5) 6.2 Automatic Fire Sprinkler Systems Service Codes: PR420 (Commercial Fire Sprinklers) A) Prior to the issuance of a building permit, the applicant shall submit plans for any addition or modification to the existing automatic fire sprinkler system in the structure to the Fire Chief for review and approval. Please contact the OCFA at (714) 573-6100 to request a copy of the "Orange County Fire Authority Notes for New NFPA 13 Commercial Sprinkler Systems." B) Prior to the issuance of a certificate of occupancy, this system shall be operational in a manner meeting the approval of the Fire Chief. Exhibit A Resolution No. 4127 Page 9 (5) 6.3 Fire Alarm System Service Codes: PR500-520 (Fire Alarm & Fire Sprinkler Monitoring Reviews) A) Prior to the issuance of a building permit, plans for the fire alarm system shall be submitted to the Fire Chief for review and approval. The applicant may contact the OCFA at (714) 573-6100 or visit the OCFA website to obtain a copy of the "Guideline for New and Existing Fire Alarm Systems." B) Prior to the issuance of a certificate of occupancy, this system shall be operational in a manner meeting the approval of the Fire Chief. FEES (1) 7.1 Prior to issuance of any permits, payment shall be made of all applicable fees, including but not limited to, the following: • Building and Planning Plan Check and Permit Fees • Orange County Fire Authority Fees. (2) 7.2 Within forty-eight (48) hours of approval of the subject project, the applicant shall deliver to the Community Development Department, a cashier's check payable to the COUNTY CLERK in the amount of fifty dollars ($50.00) to enable the City to file the appropriate environmental documentation for the project. If within such forty-eight (48) hour period that applicant has not delivered to the Community Development Department the above -noted check, the statute of limitations for any interested party to challenge the environmental determination under the provisions of the California Environmental Quality Act could be significantly lengthened. ATTACHMENT B SUBMITTED PLANS .0'ge i 1�� . ,� � , _ - i 1'�- �� r.Pv �� 4 a� W. LL tJ x .3 r O ,z 4�y ATTACHMENT C REVISED RESOLUTION NO. 4127 RESOLUTION NO. 4127 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN, APPROVING CONDITIONAL USE PERMIT 09-017 AUTHORIZING THE ESTABLISHMENT OF A BOUTIQUE ENTERTAINMENT VENUE/NIGHTCLUB WITH A TYPE 48 ALCOHOLIC BEVERAGE CONTROL LICENSE AND LIVE ENTERTAINMENT LOCATED AT 2429 PARK AVENUE WITHIN THE LIFESTYLE CENTER OF THE DISTRICT SHOPPING CENTER AT TUSTIN LEGACY. The Planning Commission does hereby resolve as follows: The Planning Commission finds and determines as follows: A. A proper application, Conditional Use Permit 09-017, was filed by Gengus Sanborn of Bounce Entertainment LLC., requesting authorization to establish and operate a boutique entertainment venue/nightclub with a Type 48 Alcoholic Beverage Control (ABC) License and live entertainment at 2429 Park Avenue within the Lifestyle Center of the District shopping center at Tustin Legacy. B. That the MCAS Tustin Specific Plan zoning designation and General Plan land use designation provide for a variety of commercial and entertainment uses. In addition, the project has been reviewed for consistency with the Air Quality Sub -element of the City of Tustin General Plan and has been determined to be consistent with the Air Quality Sub -element. C. That pursuant to Section 3.8.4.A2 of the MCAS Tustin Specific Plan, on- site alcoholic beverage sales establishments including bars, tavems, and cocktail lounges require approval of a conditional use permit. Pursuant to Section 3.14.2.131 of the MCAS Tustin Specific Plan, on-site alcoholic beverage sales establishments within Planning Area 19 (subject property) are not subject to distancing requirements to sensitive uses. D. That pursuant to Section 9270b(e) of the Tustin City Code, presentation of live entertainment requires approval of a conditional use permit. E. That a public hearing was duly called, noticed, and held for said application on September 8, 2009, by the Planning Commission and continued to the October 13, 2009 Planning Commission meeting. F. That in accordance with the conditions contained herein, the establishment, maintenance, and operation of the proposed use will not, under the circumstances of this case, be detrimental to the health, safety, morals, comfort, or general welfare of the persons residing or working in the neighborhood, nor be injurious or detrimental to the Resolution No. 4127 Page 2 property and improvements in the neighborhood of the subject property, or to the general welfare of the City of Tustin in that: 1. The Lifestyle Center in the District was developed to allow the particular type of boutique entertainment venue/nightclub with live entertainment and alcohol sales as applied for and can reasonably accommodate such a use. 2. The typical hours of the proposed boutique entertainment venue/nightclub are compatible with other uses within the Lifestyle Center and the District. 3. No noise impacts are anticipated as there are no existing or planned residential uses within the immediate vicinity of the project site. Existing noise attenuation measures within the building would mitigate any impacts to neighboring tenants. 4. Based on the parking analysis for the District, it has been determined that there would be sufficient parking provided to accommodate the proposed use. 5. The project site is located within a redevelopment project area and the City of Tustin Redevelopment Agency has reviewed and approved the project. The Agency has determined that the proposed tenant is a Class A User as required by the Disposition and Development Agreement between Vestar and the City. 6. As conditioned, the presentation of live entertainment at the subject property would not be detrimental to the health, safety, morals, comfort, and general welfare of the City. 7. As conditioned, Conditional Use Permit 09-017 may be reviewed on an annual basis, or more often if necessary, by the Community Development Director. If the use is not operated in accordance with Conditional Use Permit 09-017 or is found to be a nuisance or negative impacts are affecting the surrounding uses, the Community Development Director would have the authority to impose additional conditions to eliminate the nuisance or negative impacts or may initiate proceedings to revoke the Conditional Use Permit. 8. Pursuant to Section 3.8.413 of the MCAS Tustin Specific Plan, no sexually oriented businesses can be established within Planning Area 19 (the District). 9. The implementation/application of the proposed conditions would ensure compatibility of the proposed boutique Resolution No. 4127 Page 3 entertainment venue/nightclub with the surrounding uses and the Tustin City Code. G. This project is Categorically Exempt pursuant to Section 15301, Class 1 of the California Code of Regulations (Guidelines for the California Environmental Quality Act). II. The Planning Commission hereby approves Conditional Use Permit 09-017 authorizing the establishment of a boutique entertainment venue/nightclub with a Type 48 ABC License and live entertainment at 2429 Park Avenue within the Lifestyle Center of the District shopping center at Tustin Legacy, subject to the conditions contained within Exhibit A attached hereto. PASSED AND ADOPTED by the Planning Commission of the City of Tustin at a regular meeting on the 13th day of October, 2009. STEVE KOZAK Chairperson ELIZABETH A. BINSACK Planning Commission Secretary STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) I, Elizabeth A. Binsack, the undersigned, hereby certify that I am the Planning Commission Secretary of the City of Tustin, California; that Resolution No. 4127 was duly passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 13th day of October, 2009. ELIZABETH A. BINSACK Planning Commission Secretary EXHIBIT A RESOLUTION NO. 4127 CONDITIONAL USE PERMIT 09-017 CONDITIONS OF APPROVAL GENERAL (1) 1.1 The proposed project shall substantially conform with the submitted plans for the project date stamped October 13, 2009, on file with the Community Development Department, as herein modified, or as modified by the Director of Community Development in accordance with this Exhibit. The Director of Community Development may also approve subsequent minor modifications to plans during plan check if such modifications are consistent with provisions of the Tustin City Code. (1) 1.2 This approval shall become null and void unless the use is established within twelve (12) months of the date of this Exhibit. Time extensions may be granted if a written request is received by the Community Development Department within thirty (30) days prior to expiration. (1) 1.3 All conditions in this Exhibit shall be complied with subject to review and approval by the Community Development Department. (1) 1.4 Approval of Conditional Use Permit 09-017 is contingent upon the applicant and property owner signing and returning to the Community Development Department a notarized "Agreement to Conditions Imposed" form and the property owner signing and recording with the County Clerk -Recorder a notarized "Notice of Discretionary Permit Approval and Conditions of Approval' form. The forms shall be established by the Director of Community Development, and evidence of recordation shall be provided to the Community Development Department. (1) 1.5 Any violation of any of the conditions imposed is subject to the issuance of an Administrative Citation pursuant to Tustin City Code Section 1162(a). (1) 1.6 The applicant shall be responsible for costs associated with any necessary code enforcement action, including attorney fees, subject to the applicable notice, hearing, and appeal process as established by the City Council by ordinance. SOURCE CODES (1) STANDARD CONDITION (5) (2) CEQA MITIGATION (6) (3) UNIFORM BUILDING CODE/S (7) (4) DESIGN REVIEW *** RESPONSIBLE AGENCY REQUIREMENT LANDSCAPING GUIDELINES PC/CC POLICY EXCEPTION Exhibit A Resolution No. 4127 Page 2 (1) 1.7 As a condition of approval of Conditional Use Permit 09-017, the applicant shall agree, at its sole cost and expense, to defend, indemnify, and hold harmless the City, its officers, employees, agents, and consultants, from any claim, action, or proceeding brought by a third party against the City, its officers, agents, and employees, which seeks to attack, set aside, challenge, void, or annul an approval of the City Council, the Planning Commission, or any other decision-making body, including staff, conceming this project. The City agrees to promptly notify the applicant of any such claim or action filed against the City and to fully cooperate in the defense of any such action. The City may, at its sole cost and expense, elect to participate in defense of any such action under this condition. (1) 1.8 Conditional Use Permit 09-017 may be reviewed annually or more often, if deemed necessary by the Community Development Director on the Community Development Director's own initiative or in consultation with the Police Chief or the Director of Public Works, to ensure compatibility with the area and compliance with the conditions of approval contained in this Resolution and related Exhibits ("conditions of approval"). If the Community Development Director, either on the Director's own initiative or after consulting with the Police Chief and/or the Director of Public Works, determines that there is evidence that the use is being operated in a manner inconsistent with the conditions of approval or is creating a nuisance or otherwise negatively or detrimentally affecting nearby tenants or the neighborhood, the Community Development Director shall set the matter for hearing before the Planning Commission and the City Council as provided under Tustin City Code Section 9293. At the conclusion of such hearing, the City Council after making the finding specified in Tustin City Code Section 9293(c)(1), as may be amended from time to time, may either revoke the permit or impose additional conditions as the City Council may reasonably determine necessary or convenient to eliminate any nuisance or minimize any negative impacts. (1) 1.9 No change or alteration of the tenant space shall substantially occur from the approved plans dated October 13, 2009, or the original spirit and intent of this approval without prior approval of the Community Development Director. Modifications to the floor area including removal of fixed seats, services, and/or operation of the business may require consideration of a new Conditional Use Permit. ALCOHOL RESTRICTIONS (1) 2.1 Sales or consumption of alcoholic beverages shall be permitted only between the hours of 5:00 p.m. and 1:45 a.m. each day of the week unless modified by the Director of Community Development. (1) 2.2 There shall be no promotions encouraging intoxication or drinking contests or advertisements indicating "Buy one drink, get one free," "Two for the price of Exhibit A Resolution No. 4127 Page 3 one," or "All you can drink for ..." or similar language. Advertisements include but are not limited to leaflets, flyers, postings, handbills, email, and other forms of electronic mailings or online social networking. (1) 2.3 The sale of alcoholic beverages for consumption off the premises is prohibited, with the exception of private special events during the hours of 5:00 p.m. to 10:00 p.m. (1) 2.4 There shall be no exterior advertising or sign of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages. Interior displays of alcoholic beverages or signs which are clearly visible to the exterior shall constitute a violation of this condition. (1) 2.5 Controls shall be established to maintain occupancy levels allowed by the Orange County Fire Authority and those Fire Department approved levels will not be exceeded. Methods of controlling occupancy can include, but not be limited to the following: • Counters used to count the number of occupants entering and exiting the location which are available for inspection by OCFA or the Police Department. (1) 2.6 Except in case of emergency, the licensee shall not permit its patrons to enter or exit the licensed premises through any entrance/exit other than the primary entrance/exit. Steps shall be taken by the licensee to discourage unauthorized exiting. (1) 2.7 Aisles and hallways shall be kept clear in order to allow patrons to move freely about the licensed premises. (1) 2.8 All patrons who appear under the age of 30 shall be required to show some form of identification or they will not be served an alcoholic beverage. Multiple signs indicating this policy shall be prominently posted in places such as restrooms and entrances that are clearly visible to patrons. Only the following forms of identification will be acceptable: a. Valid drivers license; b. Valid State identification card; c. Valid passport; d. Current military identification; e. U.S. Government immigrant identification card All forms of out-of-state identification shall be checked by the authorized representative of the owner of the licensed premises in the Driver's License Guide. Upon presentation to the authorized representative of the owner of the licensed premises, the patron's form of identification shall be removed Exhibit A Resolution No. 4127 Page 4 from the patron's wallet or any plastic holder and inspected for any alterations through a close visual inspection and/or use of a flashlight or "Retro -reflective viewer." (1) 2.9 Persons who appear obviously intoxicated shall not be admitted into the premises. (1) 2.10 Patrons who appear obviously intoxicated shall not be served any alcoholic beverages. (1) 2.11 There shall be no "stacking" of drinks, i.e., more than one drink at a time, to a single patron. (1) 2.12 When serving pitchers exceeding 25 ounces of an alcoholic drink, all patrons receiving such pitcher, as well as all patrons who will be consuming all or any portion of such pitcher, shall present an ID to the server if appearing to be under the age of 30, if not previously checked at the entrance to the licensed premises. (1) 2.13 Oversized containers or pitchers containing in excess of 25 ounces of an alcoholic drink shall not be sold to a single patron for their sole consumption. (1) 2.14 Any patron who (1) fights or challenges another person to fight, (2) maliciously and willfully disturbs another person by loud or unreasoned noise, or (3) uses offensive words which are inherently likely to provoke an immediate violent reaction shall be removed from the premises. (1) 2.15 An incident log shall be maintained at the licensed premises on a continual basis with at least one year of entries and be readily available for inspection by a police officer. The log is for recording any physical altercations, injuries, and objectionable conditions that constitute a nuisance occurring in, on, or at the licensed premises, including the immediately adjacent area that is owned, leased, or rented by the licensee. The log will indicate date, time, description of incident, and action taken. "Objectionable conditions that constitute a nuisance" means disturbance of the peace, public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, loitering, public urination, lewd conduct, drug trafficking, or excessive loud noise. (1) 2.16 The Police Department may require State licensed security guards to perform crowd control inside and outside of the establishment, based upon the type of activities anticipated at the location or based upon prior history of activity at this establishment or other similar businesses. (1) 2.17 Security personnel required by the Conditional Use Permit issued for the licensed premises shall be in a uniform or clothing which is readily identifiable as a security person. They shall maintain order and enforce the establishment's no loitering policy, and shall take "reasonable steps" (as that Exhibit A Resolution No. 4127 Page 5 term is defined in subparagraph (3) of Section 24200 of the California Business and Professions Code) to correct objectionable conditions that constitute a nuisance, including clearing the parking lot in a timely manner at closing time. The applicant shall be responsible for all congregating and queuing of persons associated with the venue which occurs outside of the facility. (1) 2.18 Employees and contract security personnel shall not consume any alcoholic beverages during their work shift. (1) 2.19 The owner or manager of the licensed premises shall maintain on the premises a written security policy and procedures manual addressing at a minimum the following items: • Handling obviously intoxicated persons; • Establishing a reasonable ratio of employees to patrons, based upon activity level, in order to monitor beverage sales and patron behavior; • Handling patrons involved in fighting or arguing; • Handling loitering about the building and in the immediate adjacent area that is owned, leased, rented or used under agreement by the Licensee(s); • Verifying age/checking identification of patrons; • Warning patrons of reaching their drinking limit/potential intoxication and refusing to serve; and • Calling the police regarding observed or reported criminal activity. (1) 2.20 Contract security services, proprietary security personnel, or personnel assuming the functions typically associated with security shall be familiar with the establishment's written security policy and procedures; by reviewing them and signing they have read and understood the policy. The signed acknowledgement shall be kept in file relating to the security manual. (1) 2.21 A file containing the names and dates of employment of every person who serves alcoholic beverages for consumption by patrons on the licensed premises and every manager, which file shall also include a copy of each person's certificate of completion of the Department of Alcohol Beverage Control L.E.A.D, course (Licensee Education on Alcohol and Drugs). Upon request, said file shall be made available for review to representative of the Police Department of the City of Tustin. (7) 2.22 The applicant shall produce an Operations Manual to be retained on-site at the facility identifying the procedures and regulations for operating the proposed nightclub venue. Prior to building permit final or Certificate of Occupancy, the applicant shall submit said Operations Manual to the Community Development Department for review and approval. At a minimum, said Operations Manual shall contain the following items: Exhibit A Resolution No. 4127 Page 6 (a) A copy of Planning Commission Resolution No. 4127 (b) A copy of the facility's live entertainment permit (c) A copy of the facility's alcohol license and conditions of approval (d) Sections of the California Business and Professions Code applicable to the operation of nightclubs and alcohol sales (e) Security policy and procedures (f) Employee training manual (g) Dress code criteria and protocol (h) Incident log LIVE ENTERTAINMENT RESTRICTIONS (1) 3.1 No sexually oriented businesses shall be established within the project site pursuant to Section MAD of the MCAS Tustin Specific Plan. (1) 3.2 There shall be no special events sponsored by or involving an outside promoter or any other person other than the applicant. Charity events may be organized and conducted by persons employed by or volunteering for the charity group. The building may not be sublet to a separate business or promoter or person other than the applicant. (1) 3.3 A Live Entertainment Permit shall be obtained through the Business License Division prior to establishing, conducting, or carrying on any live entertainment. The Live Entertainment Permit shall be non -transferable to any person(s). (1) 3.4 No business operating with a valid Live Entertainment Permit shall employ any person who has been convicted of illegal drug usage, drug dealing, or prostitution within the last five (5) years. (1) 3.5 The live entertainment shall be conducted in a manner that does not create a public or private nuisance. Any such nuisance must be abated immediately upon notice by the City of Tustin. (1) 3.6 The ambient noise levels resulting from the live entertainment shall not exceed the standards of the City of Tustin Noise Ordinance. Outside address speakers, telephone bells, buzzers, and other similar devices, which are audible from adjoining properties, shall be prohibited. Exhibit A Resolution No. 4127 Page 7 (1) 3.7 All litter shall be removed from the exterior areas around the premises, including adjacent public sidewalk areas and parking areas, no less frequently than once each day that live entertainment is performed. (1) 3.8 Fire and Police access and passage shall be permitted at all times. (1) 3.9 Exterior public pay telephones shall be prohibited and interior public pay phones shall be programmed to prevent incoming calls. (1) 3.10 "No Loitering" signs shall be placed near the entrance on the outside of the premises. No congregation and loitering outside the building shall be permitted. (1) 3.11 No outdoor storage shall be permitted except as approved by the Tustin Community Development Director. (1) 3.12 The applicant shall notify the City of Tustin a minimum of thirty (30) days prior to any live entertainment events and any events which will involve ticket sales. The City shall review and approve the performer and planned event for adequate security. If in the opinion of the City of Tustin that the proposed facility cannot adequately accommodate a performer or event, said performance or event shall not proceed. The applicant shall bear all costs associated with additional Police services as determined by the City of Tustin Police Department for all events. Failure to notify the City within the allotted timeframe of any live entertainment event or event involving ticket sales are grounds for revocation of the live entertainment permit and Conditional Use Permit. (1) 3.13 If in the future the City's Community Development Director, Police Chief, and/or Public Works Department determine that any nuisance including but not limited to parking, traffic, or noise problem exists on the site or in the vicinity as a result of the facility, the Community Development Director, Police Chief, and/or Public Works Department may require that the applicants to prepare a parking demand analysis, traffic study, or noise analysis and the applicants shall bear all associated costs. If said study indicates that there is inadequate parking or a traffic or noise problem, the applicants shall be required to provide mitigation measures to be reviewed and approved by the Community Development Department, Police Chief, and/or Public Works Department. Said mitigation measures may include, but are not limited to, the following: (a) Reduce hours of operation. (b) Eliminate live entertainment. (c) Reduce the number/frequency of performers. (d) Require additional on-site security personnel. (e) Provide additional parking. Exhibit A Resolution No. 4127 Page 8 (f) Provide noise attenuation measures BUILDING DIVISION (1) 4.1 At the time of building permit application, the plans shall comply with the 2007 California Building Code (CBC), 2007 California Mechanical Code (CMC), 2007 California Plumbing Codes (CPC), 2007 California Electrical Code (CEC), California Title 24 Accessibility Regulations, 2005 Title 24 Energy Regulations, City Ordinances, and State and Federal laws and regulations 2005 Edition. (1) 4.2 At the time of plan submittal provide: Seven (7) set of plans including building, electrical, mechanical, and plumbing plans. Two sets of structural calculations (when applicable). Two sets of Title 24 energy calculations for outdoor lighting (when applicable). (1) 4.3 The plans submitted shall indicate that restrooms are accessible to persons with disabilities as per State of California Accessibility Standards (Title 24). Plumbing fixture units are required to comply with the 2007 California Plumbing Code Chapter 4, Table 4-1 as per type of group occupancy, or as approved by the Building Official. (1) 4.4 Prior to permit issuance, clearances will be required from the Orange County Health Department and Orange County Fire Authority, . (1) 4.5 Vehicle parking, primary entrance(s) to the site and building, the primary paths of travel building entrance, cashier space, sanitary facilities, drinking fountain, and public telephones shall be accessible to persons with disabilities and shall be shown on the plans. PUBLIC WORKS DEPARTMENT (1) 5.1 Construction and Demolition Waste Recycling and Reduction Plan (WRRP). A. The applicant/contractor is required to submit a WRRP to the Public Works Department. The WRRP must indicate how the applicant will comply with the City's requirement (City Code Section 4351, et al) to recycle at least 50 percent of the project waste material. B. The applicant will be required to submit a $50.00 application fee and a cash security deposit. Based on the review of the submitted Waste Management Plan, the cash security deposit will be determined by the Public Works Department in an amount not to exceed five percent of the project's valuation. Exhibit A Resolution No. 4127 Page 9 C. Prior to issuance of any permit, the applicant shall submit the required security deposit in the form of cash, cashier's check, personal check, or money order made payable to the "City of Tustin." ORANGE COUNTY FIRE AUTHORITY (5) 6.1 Architectural Building Plans Service Codes: PR200-285 (New Construction Architectural Review) Prior to the issuance of a building permit, the applicant shall submit architectural plans for the review and approval of the Fire Chief. The applicant should be aware that all requirements regarding building construction and exiting shall be in compliance with the 2007 California Building Code (CBC), specifically Table 503 and Chapter 10. It is recommended that the applicant submit the architectural building plans as soon as possible to ensure that all exiting and construction requirements are addressed. (5) 6.2 Automatic Fire Sprinkler Systems Service Codes: PR420 (Commercial Fire Sprinklers) A) Prior to the issuance of a building permit, the applicant shall submit plans for any addition or modification to the existing automatic fire sprinkler system in the structure to the Fire Chief for review and approval. Please contact the OCFA at (714) 573-6100 to request a copy of the "Orange County Fire Authority Notes for New NFPA 13 Commercial Sprinkler Systems." B) Prior to the issuance of a certificate of occupancy, this system shall be operational in a manner meeting the approval of the Fire Chief. (5) 6.3 Fire Alarm System Service Codes: PR500-520 (Fire Alarm & Fire Sprinkler Monitoring Reviews) A) Prior to the issuance of a building permit, plans for the fire alarm system shall be submitted to the Fire Chief for review and approval. The applicant may contact the OCFA at (714) 573-6100 or visit the OCFA website to obtain a copy of the "Guideline for New and Existing Fire Alarm Systems." B) Prior to the issuance of a certificate of occupancy, this system shall be operational in a manner meeting the approval of the Fire Chief. Exhibit A Resolution No. 4127 Page 10 FEES (1) 7.1 Prior to issuance of any permits, payment shall be made of all applicable fees, including but not limited to, the following: • Building and Planning Plan Check and Permit Fees • Orange County Fire Authority Fees. (2) 7.2 Within forty-eight (48) hours of approval of the subject project, the applicant shall deliver to the Community Development Department, a cashier's check payable to the COUNTY CLERK in the amount of fifty dollars ($50.00) to enable the City to file the appropriate environmental documentation for the project. If within such forty-eight (48) hour period that applicant has not delivered to the Community Development Department the above -noted check, the statute of limitations for any interested party to challenge the environmental determination under the provisions of the California Environmental Quality Act could be significantly lengthened.