HomeMy WebLinkAboutPC Res 05-19 - 2005-05-04
RESOLUTION NUMBER 05-19
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A RESOLUTION OF THE PLANNING
COMMISSION OF THE CITY OF SEAL
BEACH APPROVING CONDITIOPNAL USE
PERMIT 99-3 (INDEFINITE EXTENSION),
ALLOWING FOR THE CONTINUED USE OF A
FULLY ENCLOSED, UNCOVERED 300
SQUARE FOOT OUTDOOR DINING AREA
TOWARDS THE REAR OF THE EXISTING
RESTAURANT STRUCTURE (O'MALLEY'S
ON MAIN) AT 140 MAIN STREET, SEAL
BEACH
THE PLANNING COMMISSION OF THE CITY OF SEAL BEACH
DOES HEREBY FIND AND RESOLVE:
Section 1. On April 13, 2004, Brian Kyle (the "Applicant") filed an
application with the Department of Development Services for Conditional Use Permit 99-
3 (Indefinite Extension) for the continued use of a fully enclosed, uncovered 300 square
foot outdoor dining area towards the rear of the existing restaurant structure (O'Malley's
on Main). The outdoor dining area is located between the restaurant and an existing
detached two-car garage/apartment above structure at 140 Main Street, Seal Beach.
Section 2. Pursuant to 14 California Code of Regulations ~15305 and
~II(B) of the City's Local CEQA Guidelines, staff has determined as follows: the
application for CUP 99-3 (Indefinite Extension) for the continued use of a 300 square
foot outdoor patio dining area is categorically exempt from review pursuant to the
California Environmental Quality Act pursuant to 14 California Code of Regulations
~15301 (Minor Alterations in Land Use Limitations), because the proposal involves a
negligible expansion of an existing use; pursuant to ~15305 (Minor Alterations in Land
Use Limitations), because the proposal involves a minor alteration in land use limitation
and does not involve either a property in excess of 20% slope or a change in land use or
density; and, the proposed outdoor dining area was considered as part of Negative
Declaration 96-2, evaluating the environmental impacts of the Main Street Specific Plan.
Section 3. A duly noticed public hearing was held before the Planning
Commission on May 5, 2004, to consider the application for CUP 99-3 (Indefinite
Extension). Written and oral evidence was submitted by persons speaking for and against
the project.
Section 4. At the conclusion of the public hearing on May 5, 2004, the
Planning Commission adopted Resolution 04-28, allowing for the continued operation of
the outdoor patio dining area and requiring that the patio is to be closed to patrons 30
minutes after the cessation of food service until the applicant and the Director of
Development Services come to an agreement on acceptable mitigation measures for
sound.
Section 5. The Applicant has submitted documentation from Giroux
& Associates indicating that construction of a noise wall along the southerly side of the
outdoor patio dining area has reduced off-site levels at the closest neighbors to the same
or lesser level that they would consider as the general background noise level along the
length of the alley.
Section 6. A duly noticed public hearing was held before the Planning
Commission on April 20, 2005, to consider the application for CUP 99-3 (Indefinite
Extension) and the compliance measures instituted for sound attenuation.
Z \My Documents\RESO\CUP 99-3 Indefinite ExtenSion PC Reso 05-04-05 doc\LW\05-05-05
Plannmg CommISSIOn ResolutIOn 05-19
CondItIOnal Use PermIt 99-3, Indefinite extensIOn
140 Main Street (O'Malley's On Mam)
May 4, 2005
Section 7.
The record of the hearing of April 20, 2005 indicates the
following:
(a) On April 13, 2004 Brian Kyle submitted an application for CUP
99-3 (Indefinite Extension) with the Department of Development Services.
(b) Specifically, the applicant is proposing to continue to utilize a 300
square foot outdoor dining area towards the rear of the existing restaurant and lease three
parking spaces within close proximity to provide the required off-street parking for the
proposed outdoor dining area in accordance with the provisions of Section 28-1254.3 of
the Code of the City of Seal Beach.
(c) The subject property contains approximately 5,875 square feet,
including the adjacent business at 138 Main Street and the existing detached two-car
garage/apartment above structure at the rear of the property. The property is located on
the east side of Main Street approximately 100 feet south of Central Avenue, within the
Main Street Specific Plan Zone.
(d) The subject property is described as Orange County assessor's
parcel number 199-044-32.
(e) The subject property contains an existing restaurant (O'Malley's
on Main, approximately 3,512 square feet in area) that has been in operation for
approximately 5 years. Previously, Hennessey's Tavern operated as a restaurant use at
the site for approximately 14 years.
(f) The proposed restaurant is a full service restaurant that sells an
assortment of non-alcoholic beverages as well as beer, wine and distilled spirits.
(g) The City has granted the following approvals for the property:
o Variance 84-14 for a reduction of required number of parking spaces.
o Conditional Use Permit 84-18 for the on-site sale of alcoholic beverages.
o Conditional Use Permit 99-3 for the use of an outdoor, 300 square foot patio
area.
(h) The subject property is legally nonconforming due to inadequate
parking. The property is three (3) spaces deficient (based on the proposed continued use
of a patio) and the applicant has provided the required number of off-street parking
spaces within 300 feet, in accordance with the provisions of Section 28-1254.3.
(i) The surrounding land uses and zoning are as follows:
AND WEST
Commercial business along Main Street, in
the Main
Street Specific Plan (MSSP) Zone.
NORTH, SOUTH
EAST
Various residential developments of single-
family and multiple family, in the
Residential High Density (RHD) Zone
G) To comply with the conditions imposed by the Planning
Commission set forth in Condition 8 of Planning Commission Resolution 04-28, the
Applicant retained Giroux & Associates to undertake the following actions:
(1) Completed a "Rear Restaurant Patio Noise Study", dated
May 21, 2004, which evaluated the existing noise environment on the patio area at
several different times between 9 PM and I AM on Friday and Saturday, May 14 and 15,
2004.
CUP 99-3 Indefimte ExtenSIon PC Rcso 05-04-05
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Planning Commission ResolutIOn 05-19
ConditIOnal Use PermIt 99-3, Indefimte extensIOn
140 Main Street (O'Malley's On Main)
May 4, 2005
(2) Completed a "Rear Restaurant Patio Noise Study"
("Study"), dated November 4, 2004, which evaluated the noise environment after
construction of a noise wall on the patio area at several different times between 9 PM and
1 AM on Friday and Saturday, October 15 and 16,2004.
(k) The conclusions of the November 4, 2004 Giroux & Associates
Study was "It is our professional opinion that the barrier has reduced off-site noise levels
at the closest neighbors to the same or lesser level that we would consider as the general
background noise level along the length of the alley."
Section 8. Based upon the facts contained in the record, including
those stated in ~7 of this resolution and pursuant to ~~28-1400, 28-2503 and 28-2504 of
the City's Code, the Planning Commission makes the following findings:
(a) Conditional Use Permit 99-3 (Indefinite Extension) is consistent
with the provisions of the Land Use Element of the City's General Plan, which provides a
"Main Street Specific Plan" zoning designation for the subject property and permits
restaurants serving alcoholic beverages subject to the issuance of a conditional use
permit. The proposed conditional use permit to continue to operate a 300 square foot
enclosed, but uncovered patio to the existing restaurant, and provide the required parking
spaces within 300 feet of the subject property in accordance with the provisions of
Section 28-1254.3. The use is also consistent with the remaining elements of the City's
General Plan, as the policies of those elements are consistent with, and reflected in, the
Land Use Element. Accordingly, the proposed use is consistent with the General Plan.
(b) The proposed continued use of the outdoor dining area is
consistent with surrounding residential and commercial uses, in that a restaurant has been
in operation at the site for several years. In this case the outdoor area is located centrally
within the property, and is not directly visible or accessible from Main Street. In
addition, the existing restaurant building, the existing 2-story carport/apartment structure
and the recently modified wall along the southerly side of the outdoor patio area provide
additional sound screening from the adjoining residential area to the east. A noise study
conducted in November 2004 by Giroux & Associates concluded, "the barrier has
reduced off-site noise levels at the closest neighbors to the same or lesser level that we
would consider as the general background noise level along the length of the alley." In
addition, the owner has installed a one-way emergency door so that patrons can exit
though the alley if necessary, but must use the entrance from Main Street to enter the
restaurant and the proposed outdoor dining area.
(c) The building and property at 140 Main Street are adequate in size,
shape, topography and location to meet the needs of the proposed use of the property and
the proposed continued use of the outdoor dining area, in that a restaurant has been in
operation at the site for several years. Adequate provisions for parking for the outdoor
dining area has been provided through the provisions of "Agreement Containing
Covenants Affecting Real Property", recorded as Document 20000158280 on March 28,
2000 in the Office of the Orange County Clerk/Recorder. Additional "Grant of Easement
and Agreement" documents affecting the subject property and properties at 127-129 and
130 Main Street have been properly executed and are also on file at the Department of
Development Services in relation to the provision of sufficient parking spaces for the
patio area.
(d) Required adherence to applicable building and fire codes ensures
there will be adequate water supply and utilities for the proposed use.
Section 9. Based upon the foregoing, the Planning Commission
hereby approves Conditional Use Permit 99-3 (Indefinite Extension), subject to the
following conditions:
1. CUP No. 99-3 (Indefinite Extension) is approved for the continued use of a 300
square foot outdoor dining area that is enclosed with a maximum seating capacity
CUP 99-3 Indefimte ExtenSion PC Reso 05-04-05
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Planmng Comnllssion ResolutIOn 05-19
Conditional Use Permit 99-3, Indefimte extensIOn
140 Main Street (O'Malley's On Main)
May 4, 2005
of 18 persons, but uncovered in conjunction with the existing restaurant located at
140 Main Street, Seal Beach.
2. The applicant remains bound by all the conditions of Conditional Use Permit 84-
18, Variance 84-14 and CUP 99-3, including all conditions requiring covenants to
be recorded against various properties; maintenance of agreements for off-site
parking; and continued use of the approved "Parking Utilization Program" as
required by Conditions 3 through 5 of Planning Commission Resolution 04-28.
Failure to comply with said covenants, agreements, and "Parking Utilization
Program" shall be grounds for consideration by the Planning Commission for
revocation of this Conditional Use Permit.
3. The applicant shall comply with all applicable provisions of Municipal Code
Chapter 9.25, Fats, Oil and Grease Management and Discharge Control.
4. The hours of patio use shall be from 7:00 a.m. to 1 :30 a.m., with all food and
drink service to the outdoor patio area ceasing at 11 :00 p.m., daily.
5. No video games or similar amusements shall be permitted on the premises unless
a separate conditional use permit is approved for that use.
6. Litter and trash receptacles shall be located at convenient locations inside and
outside the establishment. Operators of such establishments shall remove trash
and debris on an appropriate basis so as not to cause health problems. There shall
be no dumping of trash and/or glass bottles outside the establishment between the
hours of 10:00 p.m. and 7:00 a.m.
7. In the event staff determines security problems exist on the site, the Conditions of
this permit may be amended, under the procedures of The Code of the City of
Seal Beach, to require the provisions of additional security measures.
8. There shall be no live entertainment, amplified music, or dancing permitted
within the outdoor dining area at any time.
9. The establishment shall comply with Chapter 13D, "Noise Control", of The Code
of the City of Seal Beach as the regulations of that Chapter now exist or may
hereafter be amended. Should complaints be received regarding noise generated
by the establishment, the Planning Commission reserves the right to schedule the
subject CUP for reconsideration and may require the applicant/operator to
mitigate the noise level to comply with the provisions of Chapter 13D.
10. This CUP shall not become effective for any purpose unless/until a City
"Acceptance of Conditions" form has been signed by the applicant in the presence
of the Director of Development Services, or notarized and returned to the
Planning Department; and until the ten (10) calendar-day appeal period has
elapsed.
11. A modification of this CUP shall be applied for when:
o The establishment proposes to modify any of its current Conditions of
Approval.
o There is a substantial change in the mode or character of operations of the
establishment.
12. The Planning Commission reserves the right to revoke or modify this CUP
pursuant to Articles 25 and 28 of The Code of the City of Seal Beach if harm or
retail-related problems are demonstrated to occur as a result of criminal or anti-
social behavior, including but not limited to the congregation of minors, violence,
public drunkenness, vandalism, solicitation and/or litter.
13. Whenever the outdoor dining area is being utilized for the sale, service or
consumption of alcoholic beverages, an employee of the restaurant shall be in
CUP 99-3 Indefimte ExtenSIOn PC Reso 05-04-05
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Plannmg Commission ResolutIOn 05-19
ConditIOnal Use Permit 99-3, Indefimte extensIOn
140 Mam Street (O'Malley's On Main)
May 4, 2005
attendance. He/she must maintain continuous supervision at all times to ensure
the outdoor dining area does not create a public nuisance contrary to public
welfare and morals.
14. All alcoholic beverages served in the outdoor dining area must be served in glass
containers; none may be served in bottles.
15. No ingress shall be permitted to the outdoor dining area, except through the
interior of the restaurant.
16. The Director of Public Works/City Engineer shall evaluate the need for trash
facilities and a bicycle rack directly in front of the subject business location.
Upon determination and discretion of the Director of Public Works/City Engineer,
the project applicant shall either:
a. Pay the City of Seal Beach to provide a trash container (said trash
container will be emptied and maintained by City staff) and bicycle rack to
be placed within the public right-of-way adjacent to or in the nearby
vicinity of the business operation; or
b. The business operator shall purchase its own trash container, in a style
approved by the Department of Public Works, and shall place said
container within the public right-of-way adjacent to or in the nearby
vicinity of the business operation during business hours. The business
operator shall empty and remove the container from the public right-of-
way at the end of each business day.
17. The business operator shall steam-clean the public sidewalk in front the business
location on a quarterly basis, and shall participate in any City-sponsored sidewalk
cleaning program that the City may ultimately establish in the future. The business
operator shall provide proof to the City on a yearly basis of compliance with said
sidewalk steam-cleaning program.
18. This CUP shall become null and void unless exercised within one (1) year of the
date of final approval, or such extension of time as may be granted by the Planning
Commission pursuant to a written request for extension submitted to the Department
of Development Services a minimum of ninety (90) days prior to such expiration
date.
19. The applicant shall indemnify, defend and hold harmless City, its officers, agents
and employees (collectively "the City" hereinafter) from any and all claims and
losses whatsoever occurring or resulting to any and all persons, firms, or
corporations furnishing or supplying work, services, materials, or supplies in
connection with the performance of the use permitted hereby or the exercise of the
rights granted herein, and any and all claims, lawsuits or actions arising from the
granting of or the exercise of the rights permitted by this Conditional Use Permit,
and from any and all claims and losses occurring or resulting to any person, firm,
corporation or property for damage, injury or death arising out of or connected with
the performance of the use permitted hereby. Applicant's obligation to indemnifY,
defend and hold harmless the City as stated herein shall include, but not be limited
to, paying all fees and costs incurred by legal counsel of the City's choice in
representing the City in connection with any such claims, losses, lawsuits or actions,
expert witness fees, and any award of damages, judgments, verdicts, court costs or
attorneys' fees in any such lawsuit or action.
PASSED, APPROVED AND ADOPTED by the Planning Commission of the
City of Seal Beach at a meeting thereof held on the 4th day of May. 2005, by
the following vote:
CUP 99-3 Indefimte ExtenSion PC Reso 05-04-05
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Plannmg CommIssion ResolutIOn 05-19
CondItIOnal Use Permit 99-3, Indefinite extensIOn
140 Mam Street (O'Malley's On Main)
May 4, 2005
AYES: Commissioners DEATON, LADNER, ROBERTS, SHANKS AND SHARP
NOES: Commissioners NONE
ABSENT: Commissioners NONE
ABSTAIN: Commissioners NONE
~~/:&-
@ Whittenberg
Secretary of the Planning Co
CUP 99-3 Indefimte ExtenSIon PC Reso 05-04-05
Chairman of the Planning Commission
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