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PC Res 4361RESOLUTION NO. 4361 BEING A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF CAMPBELL APPROVING A MODIFIED CONDITIONAL USE PERMIT (PLN2017-018.) FOR THE PROJECT LOCATED AT 201 ORCHARD CITY DRIVE. After notification and public hearing, as specified by law and after presentation by the Community Development Director, proponents and opponents, the :hearing was closed. The Planning Commission finds as follows with. regard to the Modified Conditional Use Permit (PLN2017-018): . 1. The project site is located on the northwest corner of Orchard City Drive and S. Central Avenue and is surrounded by commercial and restaurant uses to the north, east, and west, office uses to the south, and residential uses to the southwest. 2. The project site is zoned C-3 (Central Commercial Business District) and has a Central Commercial land use designation by the General Plan. 3. The use is located in a 4,611 square foot tenant space (3,185 sq. ft. main level, 1,426 sq. ft. mezzanine) within an existing one-story, 7,190 square foot building, shared with another restaurant ("A Bellagio") that is located within the remainder of _ the building. - 4. An approximately 3,000 square foot outside patio- serves the business, including approximately 1,300 square feet on City property and approximately 1,700 square feet on an adjacent property. 5. A restaurant use with late night (early morning) activities in the C-3 zoning district requires approval by the Planning Commission for a Conditional Use. 6. A restaurant use with live entertainment in the C-3 zoning district requires approval by the City Council for a Live Entertainment Permit. 7. A restaurant use in the C-3 zoning district that sells alcohol beverages (other than beer and wine), or a restaurant that has a separate bar area, requires approval by the Planning Commission for a Conditional Use Permit. - 8. The existing Restaurant with Bar use is subject to the Downtown Alcohol Beverage Policy and must operate as a responsible business owner in the community and in good standing under the terms of the Conditional Use Permit.' Planning Commission Resolution No. 4361 Conditional Use Permit (PLN2017-018) Page 2 of 6 9. The purpose of a conditional use permit is to allow for adequate review and input for projects that may potentially impact the community, .determine whether the permit should be approved by weighing the public need for and the benefit to be .derived from the project against any impacts it may cause, and place appropriate conditions on the project in order to protect the integrity and character of the city. 10. Strategies found within the Campbell General Plan and Downtown Campbell Development Plan include: encouraging restaurant uses that will foster a balance of day and evening activity (LUT-5.3g), permitting only those uses that are compatible with land use objectives (LUT-9.1 c), and establishing limits and controls .regarding operating hours for uses that are incompatible with adjoining residential uses dues to noise, traffic or other disturbances (LUT-9.1d). 11. Pursuant to Campbell Municipal Code (CMC) Section 6.10.130 (Violation), any responsible person who creates, maintains, or contributes to a public nuisance shall be guilty of a violation of the Municipal Code. Furthermore, the owner or other responsible person having charge or control of any building or premises on which there is any public nuisance shall be guilty of a violation,of the Municipal Code. 12. The over-concentration of late night alcohol serving establishments within a compact downtown district can create a cumulative impact that overwhelms the area creating an undesirable result such as public drunkenness, vandalism, and disorderly conduct. 13. Pursuant to CMC Section 6.10..020(a)(6), public nuisance activity includes, but is not limited to: disturbing the peace, public drunkenness, drinking alcoholic beverages in public, harassment of passersby, acts of violence, public urination or defecation, acts of vandalism, unreasonably loud noise(s), or any violation of CMC Title 21, or any use of real property for a purpose or in a manner other than approved under the .provisions of Title 21. 14. In 1997, a Conditional Use Permit was approved by the Planning Commission for the "King's Head" Restaurant and Pub with alcohol service and late night hours (UP97-09). 15. In 1998, a Licensing Agreement was executed between the City of Campbell and, the former property owner; Stephen Summerscales, allowing the King's Head restaurant and pub to use City property for an outside patio for dining purposes. No approvals were granted to allow an outside patio on an adjacent property. 16. In 2004, a modified Conditional Use Permit that also allowed for live entertainment was approved by the Planning Commission for the King's Head Restaurant and Pub (PLN2004-03). Planning Commission Resolution No. 4361 Conditional Use Permit (PLN2017-018) .Page 3 of 6 17. In 2005, 'a Live Entertainment Permit was approved by the City Council for George C. Shader (manager), to allow late night live entertainment at the King's Head restaurant (Resolution 10561). 18. In 2011, a Live Entertainment Permit was approved by the City Council for Aaron Crites (business co-owner) to allow late night live entertainment at The Spot (Resolution 11319). . 19. In 2015, City staff initiated revocation/modification proceedings due to confirmed violations. of The Spot's CUP conditions of approval. The CUP was modified to clarify that live entertainment outdoors was subject to approval by the City Council. No such approval has been applied for or granted (PLN2015-261). 20. Between January 16 and November 2016, over 20 calls for police department service were generated . by The Spot including felony _ assaults, misdemeanor assaults, incidents involving firearms, public intoxication, vandalism, overcrowding, and disturbing the peace. 21. The violations, described herein, have occurred during, the late night hours when live entertainment was offered. 22. On December 1, 2016, the Campbell Chief of Police suspended The Spot's Live Entertainment Permit due to the volume and type of on-going incidents associated with The Spot. Two of the incidents involved felony assaults committed on patrons by security personnel from The Spot who lacked proper certifications. In both incidents, the security personnel were arrested and eventually charged. by the Santa Clara County District Attorney's Office with felony battery. During another incident, a police officer was assaulted (head-butted) by a patron, while tryirig to calm an argument at The Spot. As this was occurring, officers found. themselves surrounded by a hostile crowd, where someone in the crowd .stole an officer's handgun magazine which fell out during the fight, and while another member of the crowd attempted to steal another officer's citation book. 23. The owner .has violated several conditions of the CUP, including:. being over capacity; live entertainment continuing past the allowed hours; not having properly licensed security personnel; and operating as a night club where alcohol beverage service is not ancillary and subordinate to a bona fide restaurant's primary purpose of serving food. 24. The operational practices of The Spot have created a public nuisance given that the design of the building and patio have encouraged the owner to increase the business beyond what was approved. The large open area in the tenant space, intended for dining table service, is being used as a dance hall and helps pack large crowds into the area. The outside patio is also extremely large for the conditioned occupancy limitation of 16 patrons and helps double the overall space to bring in more patrons than permitted. Planning Commission Resolution No. 4361 Conditional Use Permit (PLN2017-018) Page 4 of 6 Based upon the foregoing findings of fact, the Planning Commission further finds and concludes that: 1. Circumstances under which the permit was granted have been. changed by the .applicant to_ a degree that one or more of the findings contained in the original permit can no longer be made in a positive manner, and the public convenience, health, interest, safety, or welfare require the modification in that: a.. The current operating characteristics of the use are not compatible with the existing and future land uses on-site and in the vicinity of the subject property; b. The maintenance and operation of the use at the current location is now detrimental to the comfort, health, morals, peace, safety, or general welfare. of persons residing or working in the neighborhood of the use, and detrimental to the general welfare of the city; c. The operation of the establishment has significantly increased the demand on City services. 2. The use permit was issued, in whole or in part, on the basis of a misrepresentation or omission of a material statement in the application, or in the applicant's testimony presented during the public hearing, for the permit, in which the applicant falsely represented that the applicant would adhere to the conditions of approval. 3. The outside patio has been used without securing City approval for use of the patio area by the new owner. 4. The conditions of._the permit have not been substantially fulfilled or have been violated. 5. The use allowed by the permit has become detrimental to the"public health, safety, or welfare or the manner of operation constitutes or is creating a nuisance. . ~ , 6. The Spot has been the situs of multiple public nuisance activities as defined in CMC Chapter 6.10, calls for police service as provided in the public record, and violations of the conditional use permit, as provided herein. 7. A Conditional Use Permit may be approved, with or without conditions, only if the planning commission (or the City Council, upon appeal) makes certain findings provided in CMC- Section 21.46.040. In approving ~a Conditional Use Permit application, the planning commission (or City Council, upon appeal) may impose reasonable and necessary specific design, locational, and operational conditions relating to both on- and off-site improvements, which are intended to ensure compliance with the findings. Planning Commission Resolution No..4361 Conditional Use Permit (PLN2017-018) Page 5 of 6 8. In order to make the required findings and protect the public health, safety, and welfare, as well as the integrity and character of the city, the Planning Commission has placed appropriate conditions on the project as provided herein. 9. As conditioned in this Resolution, the modified use is compatible with the surrounding development and uses which include commercial, and restaurant uses to the north, east, and west, and an office complex to the south (The Water Tower Plaza) with an attached residential building (Park Town Place) to the southwest. 10. As conditioned in this Resolution, the modified use is allowed within the C-3 zoning district with Conditional Use Permit approval, and complies with all other applicable provisions of the Zoning Code and the Campbell Municipal Code. 11. As conditioned. in this Resolution, the modified late night operational hours (no later than 12:00 a.m.) within an existing restaurant/bar are consistent with the Central Commercial .General Plan land use designation and the C-3 (Central Business District) Zoning District. 12. As conditioned in this Resolution, the site is adequate in terms of size and shape to accommodate the existing building, parking, and other existing improvements in order to integrate the use with other uses in the surrounding area. - - 13. As conditioned in this Resolution, the site is adequately served by streets of sufficient capacity to carry the kind and quantity of traffic the use would be expected to generate. 14. As conditioned in this Resolution, the modifications to the Conditional Use Permit will not increase parking demand greater than the use, as currently conditioned. 15. As conditioned in this Resolution, the design, location, size, and operating characteristics of the modified use are compatible with the existing and future land uses on-site and in the vicinity of the subject property. 16. As conditioned in this Resolution, the establishment, maintenance, or operation of the modified use at the existing location will not be detrimental to the comfort, health, morals, peace, safety, or general welfare of persons residing or working in the neighborhood of the proposed use, or be detrimental or injurious to property and improvements in the neighborhood or to the general welfare of the city. Planning Commission Resolution No. 4361 Conditional Use Permit (PLN2017-018) Page 6 of 6 17. As conditioned in this Resolution, the modified establishment at this location will not result in an over concentration of similar uses in the surrounding area. 18. As conditioned in this _Resolution, the modified use will not create a nuisance due to litter, noise, traffic, vandalism, or other factors. . 19. As conditioned in this Resolution, the modified use will not significantly increase the demand on city services. 20. As conditioned in this Resolution, the modified restaurant use is consistent with the guidelines of the Downtown Development Plan in that it supports a use in the downtown that complements other retail activities in the downtown. 21. The Police Department has reviewed the modifications and is supportive of the modifications as conditioned. 22. No substantial evidence has been presented which shows that the use, as currently presented and subject to the required Conditions of Approval, will have a significant adverse impact on the environment. 23. This project is Categorically Exempt under Section 15301, Class 1 of the California Environmental Quality Act (CEQA) pertaining to the operation and permitting of an existing private structure involving negligible or no expansion of use beyond that existing at the time of the lead agercy's determination. 24. There is a reasonable relationship and a rough proportionality between the Conditions of Approval and the impacts of the project. THEREFORE, BE IT RESOLVED that the Planning Commission approves a Conditional Use Permit (PLN2017-018) for the Project located at 201 Orcharc! Gity Drive, subject to the attached Conditions of Approval (attached Exhibit "A"). PASSED AND ADOPTED this 14th day of February, 2017, by the following roll call vote: AYES: Dodd, Hernandez, Kendall, Reynolds, Rivlin, and Young NOES: ABSENT: Rich ABSTAIN: APPROVED: ~/ vonne Kendall, Chair ATTEST: Pau oyan, Secretary EXHIBIT A CONDITIONS OF APPROVAL Conditional Use Permit (PLN2017-018) Where approval by the Director of Community Development, City Engineer, Public Works Director, City Attorney or Fire Department is required, that review shall be for compliance with all applicable conditions of approval, adopted policies and guidelines, - ordinances, laws and regulations and accepted engineering practices for the item under review. Additionally, the applicant is hereby notified that he/she is required to comply with all. applicable Codes or Ordinances of the City of Campbell and the State ' of California that pertain to this development and are not herein specified. ~ ` COMMUNITY DEVELOPMENT DEPARTMENT. Planning Division 1. Approved Project: Approval is granted for a Conditional Use Permit (PLN2017-018} to allow operation of a restaurant with ancillary alcohol sales and late-night hours, located at 201Orchard City Drive in the C-3 Zoning District. The use shall substantially conform to the previously approved interior floor plan, dated September 9, 1997 (attached as Exhibit B -except that the use of the exterior patio is prohibited under this modified conditional use permit), except as may be modified by the Conditions of Approval specified herein. 2. Approval Expiration: Approval for the restaurant with ancillary alcohol sales. and late night operation shall be valid in perpetuity on the property, subject to continued operation of the use in conformance with the Municipal Code and/or the conditions of approval, herein. Abandonment, discontinuation, or ceasing of operations for a continuous period of twelve months shall. void the Conditional Use Permit approved herein. 3. Live Entertainment: Live entertainment is prohibited at the subject location. On or after February 14, 2018, the applicant may reapply to the Planning Commission for a modified CUP to reinstate live entertainment upon subsequent approval by the City Council; however the City is not obligated to grant such approval. 4. Additional Conditions -upon Verified Complaints: Upon receipt of two (2) verified complaints within 24 months, the Community Development Director and/or the Chief of Police may impose additional conditions or modify conditions immediately to protect the public welfare until the Planning Commission public hearing can be held. 5. Modification/Revocation of Conditional Use Permit: Operation of the use in violation of the Conditional Use Permit or any standards, Codes or Ordinances of the City of Campbell shall be grounds for consideration of revocation or modification of the Conditional Use Permit by the Planning Commission. Conditions of Approval Conditional Use Permit (PLN2017-018) Page 2 of 4 6. Modification/Review of Alcohol Sales/Service: Alcohol beverage service in the restaurant shall be ancillary and subordinate to the primary purpose of serving food. Operation of the use in a manner that creates a public nuisance; significantly disturbs the peace and enjoyment of the nearby residential neighborhood; or significantly increases the demand on city services shall be grounds for consideration of limiting or eliminating alcohol beverage sales and service. 7. Modification/Review of Late Night Hours: In the event that complaints are received regarding noise, litter, vandalism, traffic, or other factors associated with a late night operation, the Community Development Director (CDD) may limit the operational hours of the proposed "use to an 11:00 p.m. closing time. This action may be appealed to the Planning Commission but the reduced hours shall be effective immediately upon notification by the CDD. The applicant shall sign an agreement acknowledging this restriction on operational hours. 8. Noise Management: No unreasonable noises, sounds, and/or voices, including but not limited to amplified sounds, loud speakers, sounds from audio sound systems, and/or public address systems, shall be audible outside the building. In the event complaints are received by the City regarding noise, the Community Development Director, upon confirmation that noises are audible outside the building, may immediately modify the hours of operation, pending the project being brought back to the Planning Commission and/or City Council for- review. 9. Occupancy Management: It is the ,responsibility of the business owner to provide adequate entrance controls to ensure that patron occupancy is not exceeded. The applicant shall adopt and continuously utilize an effective method of counting guests that has been approved the Police Department as effective, to ensure that capacity is limited to no more than 125 persons inside. If the occupancy exceeds the maximum allowance, the Police Department shall have the ability to order staff to bring the occupancy down to the maximum, and take all lawful measures to .accomplish this end. 10. Hours of Operation: The hours of operation shall be limited as follows: Davis of the Week Indoor Operations Outdoor Operations Daily* 7:00 a.m. to 12:00 a.m. "Prohibited *All staff (e.g., bartenders; wait staff, security personnel/bouncers, front door staff, janitors, management, etc.) shall leave the premises no later than 12:30 a.m. All property maintenance shall be complete b 12:30 a.m. Conditions of Approval Conditional Use Permit (PLN2017-018) Page 3 of 4 11. Exterior Patio: Applicant is prohibited from using ,the exterior patio, unless otherwise approved by the City 12. Operational Standards: a. Indoor Occupancy: The total indoor occupancy shall be limited to 125 persons - (seated or standing) or the maximum occupancy allowed by the California Building Code (whichever is less). Maximum Occupancy signs shall be posted conspicuously within the premises and near the entry. b. Food Menu: The applicant shall expand the food service menu, commensurate with a restaurant, to include appetizers, main menu food items, soups, salads, and desserts. Full menu food service shall be provided at all times during the Business Hours in the dining and bar areas (i.e., the kitchen shall not be closed). c. Busing Stations: Applicant shall submit a floor plan indicating where the busing stations and garbage locations will be located, to the satisfaction of the Community Development Director. These stations shall be fixed to the ground so they cannot be moved. d. Music: Music shall only be allowed during dinner service and shall not be audible outside the building. If music can be heard outside, the Police Department shall have the ability to order the music turned off without debate or argument and the business owner shall comply with the order immediately. e. Tables and Chairs: All tables shall be permanently fixed to the ground, consistent with the 1997 approved floor plan (attached as Exhibit B --except that the use of the exterior patio is prohibited under this modified conditional use permit), or as may be approved by the Community Development Director. If revised, the floor plan shall .resemble a restaurant with tables dispersed throughout the building. f., Dance Floor: A dance floor is prohibited anywhere on the property or within the building. At no time, shall the floor plan be reconfigured to deliberately create an area for patrons to congregate or dance. 13. Security and Staffing: Security personnel shall be approved bjr the Police ~, Department and shall be bonded with a one million, dollar_ insurance policy. Security personnel shall be uniformed and trained and licensed consistent with the California Department of Consumers Affairs Standards.. Conditions of Approval Conditional Use Permit (PLN2017-018) Page 4 of 4 ` 14. Type 47 Alcoholic Beverage Control (ABC) Liquor License: a. The applicant shall maintain a Type 47, Alcohol Beverage Control liquor license and shall restrict the sale and consumption of alcohol beverages to the interior of the building. b. To comply with the provisos of the Type 47 Alcoholic Beverage .Control (ABC) Liquor License, .the applicant shall maintain a bona fide restaurant with `regular posted food service hours, consistent with terms of the license. 15. Smoking: "No Smoking" signs shall be posted on the premises in compliance with CMC Section 6.11.060. 16. Property Maintenance: Applicant shall maintain all exterior areas of the business free from debris, litter, graffiti, posters and stickers. The exterior area within 50 feet of the subject property, including the public parking area and sidewalk, shall be cleaned nightly to remove debris, litter, and graffiti. Property maintenance shall be completed during the approved hours of operation. _ 17. Trash Enclosure Area: Applicant shall maintain a screened trash enclosure area west of the outdoor seating area. At a minimum, the trash enclosure area shall accommodate the trash and recycling needs of the two restaurants on the property and shall have a concrete floor with sight obscuring walls of 6 feet. __ 18. Signing and Advertising: All signs advertising events shall be installed and maintained consistent with the provision of the .SignOrdinance, C.M.C. Chapter 21.30 and Section 21.10.060(K). Posting of flyers and posters on public property is prohibited. The business owner shall be considered responsible for these postings, if they occur, and shall cause their immediate removal. Failure to comply may result in Revocation of the Conditional Use Permit. 19. Cost Reimbursement: The business owner shall reimburse the City in the amount of $2,500 for the costs associated with the CUP Modification proceedings (inspections; meetings, staff report preparation, administrative costs), within 30 days from the date of approval. EXHIBIT B ,N 7.,._ b, ~^ ~ ~, ': , i i ';:~::° ~; ,' ,. y ~t±~ ~ ~ . r N Z a o ~ Q. Q Q (n O ~ M O O O O O ~ ~ d C C Q~ O O R UUa .~ Oe - H .~ 0(t61iARP GtT1f QR.. , V1CM1'1-11AP -, aaanu~. ~ Hrnlelilr Mir ~r{~D,wi M~G~ ~. 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