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HomeMy WebLinkAboutPC RES 3965 RESOLUTION NO. 3965 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN, APPROVING CONDITIONAL USE PERMIT 04-032 AUTHORIZING LIVE ENTERTAINMENT CONSISTING OF UP TO FOUR (4) PERFORMERS IN CONJUNCTION WITH AN EXISTING RESTAURANT LOCATED AT 14401 NEWPORT AVENUE. The Planning Commission does hereby resolve as follows: I. The Planning Commission finds and determines as follows: A. That a proper application, Conditional Use Permit 04-032, was filed by James McClelland and Michael Manson on behalf of the Brews Brothers Enterprises, Inc., requesting authorization to provide live entertainment consisting of up to four (4) performers in conjunction with an existing restaurant (McClure's) located at 14401 Newport Avenue. B. That the General Plan land use designation of Community Commercial/Business and the Retail Commercial (C-1) zoning district provide for a variety of commercial uses, including restaurant uses. Live entertainment is allowed with the approval of a Conditional Use Permit as required by Section 9270.b(e) of the Tustin City Code. In addition, the project has been reviewed and determined to be consistent with the Air Quality Sub-element of the City of Tustin General Plan. C. That a public hearing was duly called, noticed, and held for Conditional Use Permit 04-032 on March 28, 2005, by the Planning Commission. D. That the proposed live entertainment in conjunction with a restaurant use will not 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: 1. The proposed live entertainment use is consistent with Section 3231 et seq. of the Tustin City Code which regulates live entertainment within businesses. 2. The General Plan land use designation of Community Commercial/Business and the Retail Commercial (C-1) zoning district provide for a variety of commercial uses, including restaurant uses. Live entertainment is allowed with the approval of a Conditional Use Permit as required by Section 9270.b(e) of the Tustin City Code. In addition, the project has been reviewed and Resolution No. 3965 Page 2 3. 4. 5. 6. 7. 8. 9. determined to be consistent with the Air Quality Sub-element of the City of Tustin General Plan. The live entertainment use is proposed in conjunction with an existing "bona fide" restaurant use as authorized in Section II of the Alcoholic Beverage Sales Establishment Guidelines adopted by the City Council on May 21, 2001, through Resolution No. 01-55 and Section 9232(b)(p) of the Tustin City Code. The applicants have submitted a letter dated February 2, 2005, which indicate that they will continue to operate the existing facility as a restaurant. The restaurant is located in a shopping center within a triangular shape parcel bounded by two arterial roadways to the north and south east and back to back with another retail center. The restaurant is not adjacent to sensitive uses such as: churches, playground, schools, etc.; however, there are residential properties located within 300 feet from the exterior wall of the restaurant which are buffered to the west with an existing retail center and Walnut Avenue and to the east with a service station and Newport Avenue. The restaurant is currently providing live entertainment that is exempt from the requirements for a live entertainment permit such as single performers, duos, disc jockeys, or karaoke singers, and the City has no records that the existing live entertainment and/or the existing restaurant operation have caused any problem to the property and improvements in the vicinity. The closing hour of the restaurant shall be 2:00 a.m. daily based upon the continued operation of the existing restaurant. The live entertainment is proposed to cease at 1 :00 a.m. daily. As conditioned, Conditional Use Permit 04-032 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 04-032, 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. The applicant has not requested approval to locate any sexually oriented business or use within the existing restaurant. In accordance with Section 3912(a) of the Tustin City Code, sexually oriented businesses are not permitted within the Retail Commercial (C-1) Resolution No. 3965 Page 3 zoning district; therefore, no sexually oriented businesses shall be conducted on the property. 10. The implementation/application of the proposed conditions would ensure compatibility of the proposed live entertainment use with the surrounding uses and the Tustin City Code. E. This project is Categorically Exempt pursuant to Section 15301, Class 1 of Title 14, Chapter 3 of the California Code of Regulations (Guidelines for the California Environmental Quality Act). II. The Planning Commission hereby approves Conditional Use Permit 04-032 authorizing the provision of live entertainment consisting of up to four (4) performers in conjunction with an existing restaurant located at 14401 Newport Avenue, subject to the conditions contained within Exhibit A attached hereto. PASSED AND ADOPTED by the Planning Commission of the Ci regular meeting on the 28th day of March, 2005. of Tustin, at a 8w~~L:- ELIZABETH A. INSACK 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. 3965 was duly passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 28th day of March, 2005. &~ß.,A5~Æ- ELIZABETH A. BINSACK Planning Commission Secretary GENERAL (1 ) 1.1 (1 ) 1.2 (1 ) 1.3 (1 ) 1.4 EXHIBIT A RESOLUTION NO. 3965 CONDITIONAL USE PERMIT 04-032 CONDITIONS OF APPROVAL The proposed project shall substantially conform with the submitted plans for the project date stamped, March 28, 2005, 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. 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. All conditions in this Exhibit shall be complied with prior to the commencement of the live entertainment or as specified, subject to review and approval by the Community Development Department. Approval of Conditional Use Permit 04-032 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. SOURCE CODES (1) STANDARD CONDITION (2) CEQA MITIGATION (3) UNIFORM BUILDING CODE/S (4) DESIGN REVIEW *** EXCEPTIONS (5) (6) (7) RESPONSIBLE AGENCY REQUIREMENTS LANDSCAPING GUIDELINES PC/CC POLICY Exhibit A Resolution No. 3965 Page 2 (1 ) (1 ) (1 ) (***) (1) 1.5 1.6 1.7 1.8 1.9 As a condition of approval of Conditional Use Permit 04-032, 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. Any violation of any of the conditions imposed is subject to the payment of a civil penalty of $100.00 for each violation, or such other amounts as the City Council may establish by ordinance or resolution, and for each day the violation exists, subject to the applicable notice, hearing, and appeal process as established by the City Council ordinance. 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. Conditional Use Permit 04-032 may be reviewed on an annual basis, or more often if necessary, by the Community Development Director. The Community Development Director shall review the use to ascertain compliance with conditions of approval. If the use is not operated in accordance with Conditional Use Permit 04-032, or is found to be a nuisance or negative impacts are affecting the surrounding uses, the Community Development Director shall impose additional conditions to eliminate the nuisance or negative impacts, or may initiate proceedings to revoke the Conditional Use Permit. No change or alteration of the tenant space shall occur 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. USE RESTRICTIONS (1) 2.1 Approval of live entertainment and public dancing are contingent upon the primary business remaining as a bona fide restaurant or eating Exhibit A Resolution No. 3965 Page 3 (7) (7) (7) (1) (7) (5) (5) (7) (1 ) 2.2 2.3 2.4 2.5 2.6 2.7 2.8 2.9 establishment. A bona fide restaurant or eating establishment is defined as a retail establishment that sells food and beverages prepared on-site, where customers are served for on-site consumption. In accordance to Section II of the Alcoholic Beverage Sales Establishment Guidelines adopted by the City Council through Resolution No. 01-55, to operate exclusively as a restaurant, at least 80 percent of the premises shall be designed and used for and must possess the necessary utensils, table service, and condiment dispensers with which to serve meals to the public. The menu of the restaurant shall consist of foods that are prepared on the premises. Audited financial statements and schedules separately identifying gross sales of food and gross sales of alcohol must be submitted to the Community Development Director for annual review. The gross receipts of food sales must exceed the gross receipts of alcohol sales. If gross receipts of alcohol exceed food sales, the Community Development Director shall initiate proceedings to revoke the Conditional Use Permit. The maximum number of seats shall comply with the number of available off-street parking spaces within the entire center. A request for additional seats requires submittal of a parking summary which must be reviewed and approved by the Community Development Department prior to increasing the number of seats. Any bar located within the facility shall function as a food/beverage service bar. No off-site sale or consumption of alcohol is authorized, except partially consumed bottles of wine as authorized in the Business and Professions Code Section 23396.5. All persons selling alcoholic beverages shall be eighteen (18) years of age or older and shall be supervised by someone twenty-one (21) years of age or older. A supervisor shall be present in the same area as point of sales. Hours of sales of alcoholic beverages shall be limited to the hours when food is available. Service of food menu items shall be available during all business hours. --~ 2.10 Authorization to provide "Live Entertainment" shall not include Adult Entertainment, sexually oriented business, burlesque shows, and lewd or Exhibit A Resolution No. 3965 Page 4 (1 ) (1) (1) (1) (1) (1) (1) (1) (1) indecent acts. Sexually oriented businesses shall obtain special permits pursuant to Tustin City Code Section 3900 et seq. 2.11 The types of live entertainment permitted include single performers, duos, disc jockeys, karaoke singers, three (3) or four (4) person bands, the use of a piano, organ, keyboard, radio, record, tape, compact disc player juke box, or television receiver. Any change to the type of live entertainment other than authorized by this Conditional Use Permit shall be authorized by the Director of Community Development. 2.12 A live entertainment permit from the Community Development Director shall be obtained prior to establishing, conducting, or carrying on any live entertainment permit. The live entertainment permit shall be non- transferable to any person(s). 2.13 Based on the square footage of the restaurant, a maximum of 225 square feet of dance floor area would be permitted. Any increase over the 225 square feet of dance floor area would require review and approval by the Planning Commission. 2.14 Operating hours shall be as follows: The closing hour for the restaurant shall be 2:00 a.m. daily based upon the continued operation of the existing restaurant. Live entertainment shall cease at 1 :00 a.m. daily. No new patrons shall be admitted after the closing hours and patrons shall vacate the premises within thirty (30) minutes after closing. 2.15 Live entertainment and public dancing shall be located entirely within the interior of the restaurant. Stage or entertainment areas shall not be open to view from outside the premises. 2.16 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. 2.17 No outdoor seating shall be permitted unless a separate Conditional Use Permit is approved pursuant to the current provision of the Tustin City Code. 2.18 No exterior public phones may be located on the premises. Any existing public telephones shall be modified to prevent incoming calls. 2.19 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 the business is open. Exhibit A Resolution No. 3965 Page 5 (7) (7) (7) (1) FEES (1) 2.20 Business operations shall be 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. 2.21 Ambient noise from the facility shall not exceed the standards of the City of Tustin Noise Ordinance. 2.22 "No skateboarding" and "No loitering" signs shall be posted on the site with sign details and locations to be approved by the Community Development Department. Said signs shall include the telephone number of an on-site manager or security personnel to address and/or mitigate any violations. 2.23 If in the future the City's Community Development Director, Police Chief, and/or Public Works Department determine that a 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) Adjust hours of operation. (b) Eliminate live entertainment. (c) Reduce or increase the number of seats. (d) Require additional on-site security personnel. 3.1 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 forty- three dollars ($43.00) to enable the City to file the appropriate environmental documentation for the project. If within such forty-eight (48) hour period the 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.