PC Res 4381RESOLUTION NO. 4381
BEING A RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF CAMPBELL DENYING A MODIFICATION
(PLN2017-129) TO A PREVIOUSLY APPROVED CONDITIONAL
USE PERMIT (PLN2014-47) TO LEGALIZE AN UNPERMITTED
DJ STAGE WITHIN AN EXISTING RESTAURANT WITH
APPROVED LIVE ENTERTAINMENT, LATE-NIGHT HOURS,
AND GENERAL ALCOHOL SALE, ON PROPERTY LOCATED
AT 280 EAST CAMPBELL AVENUE.
After notification and public hearing, as specified by law and after presentation by the
Community Development Director, proponents and opponents, the hearing was closed.
After due consideration of all evidence presented, the Planning Commission did find as
follows with respect to file numbers PLN2017-129:
The project site is located on the southeast corner of East Campbell Avenue and
First Street, which is developed with a 10,371 square-foot building that is currently
occupied by three restaurants, including Willard Hicks, Mo's Breakfast and Burger
Joint and Opa! Authentic Greek Cuisine. The subject tenant occupies 5,400 square
feet of the building's total square footage.
2. The project site is zoned C-3 (Central Business District) and is designated with a
Central Commercial land use designation by the General Plan.
3. At its meeting of August 12, 2012, the Planning Commission adopted Resolution No.
4082 approving a Conditional Use Permit (PLN2012-48) to allow late night
operational hours and general alcohol sales for a new restaurant and bar.
4. At its meeting of April 22, 2014, the Planning Commission adopted Resolution No.
4149 approving a Modification (PLN2014-47) to the previously approved Conditional
Use Permit (PLN2012-48) to allow live entertainment in association with an
established restaurant and late night operational hours and general alcohol sales.
This approval allowed live entertainment "consisting of a band of no more than four
(4) musicians per band, for the purpose of providing ambient music... No amplified
live entertainment shall be permitted".
5. Subsequent to the Planning Commission's action, the current business owner
modified the restaurant space to remove the curved banquet seating area and
replaced it with a DJ booth without City approval. This action is inconsistent with the
Conditional Use Permit approval in that a DJ is not a band and by definition, a DJ's
music is amplified.
6. To address this inconsistency, the property owner has submitted an application to
further modify the approved Conditional Use Permit to legalize the DJ booth and
entertainment.
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PLN2017-129 ~ 280 E. Campbell Avenue -CUP Modification
7. Policies found within the Campbell General Plan and Downtown Campbell
Development Plan articulate a desire to promote and enhance a downtown
environment that provides a desirable balance of land uses including shopping,
services, and entertainment. This vision is evidenced in policies that encourage a
mix of day and evening activities, a distinctive retail presence, a diversity of eating
establishments, support for neighborhood-serving businesses, and protection of
surrounding residential neighborhoods.
8. 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 intoxication, vandalism, and disorderly conduct.
9. The City Council adopted the 'Downtown Alcohol Beverage Policy', consistent with
the goals and strategies of the Campbell General Plan and Downtown Development
Plan. The Policy is intended to balance the health and safety of the community while
still maintaining the commercial viability of the downtown in which restaurants have
an essential role.
10. Conformance to the provisions of the Downtown Alcohol Beverage Policy is the
basis to which the City shall review new and modified applications for alcohol
beverage service. Limitations to the hours of operation, amount of bar area seating,
alcohol beverage service, and restrictions on live entertainment are necessary to
protect the public health, safety and welfare.
11. Sale of alcohol within a restaurant is considered a "liquor establishment", subject to
approval of a Conditional Use Permit, consistent with Campbell Municipal Code
(CMC) Section 21.46.070 and the Downtown Alcohol Beverage Policy.
12. The Downtown Alcohol Beverage Policy, Section 11.2 (Restaurants with Separate
Bars), subsection 'd,' specifies that "live entertainment is limited to live musicians
complimentary to the primary purpose of providing meal service".
13. The meaning of "live musicians" as used in the Downtown Alcohol Beverage Policy
is subject to interpretation of the Community Development Director and/or the
Planning Commission pursuant to CMC Section 21.02.030.D.
14. In determining the meaning "live musicians" in context of the Downtown Alcohol
Beverage Policy, the Planning Commission considered the February 3, 2009 City
Council staff report for adoption of the Policy that specifically stated the following
with regards to Section 11.2 (Restaurants with Separate Bars), subsection 'd',
articulating the intent of this section was to preclude DJs and other forms of live
entertainment not consisting of live musicians.
This section further assists in preventing restaurants from evolving into bars or nightclubs No
DJs or promoted entertainment will be allowed in restaurants. Live entertainment will be
restricted to music that is complimentary to the main purpose of meal service.
Planning Commission Resolution No. 4381
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Page 3
15. This understanding is supported by the definition for "live entertainment" provided by
CMC Sec. 5.24.010(b) that creates a mutually exclusive distinction between "disk
jockeys" and other types of musical performers, such as a "band" or
"instrumentalist," suggesting that "live musicians" means either a band or
instrumentalist and not a DJ (disk jockey).
16. In addition to a plain reading of Downtown Alcohol Beverage Policy and the
Campbell Municipal Code, the purpose and intent also of the Policy also inform an
understanding that a DJ within a restaurant is neither desirable nor allowable under
the Policy. The Policy and the February 3, 2009 staff report speak to a desire to
encourage "responsible service of alcohol" in restaurants such that they do not
evolve into bars or nightclubs. Performance by DJs are intended to be attention-
getting by use of loud music, strong beats, basslines, and percussion breaks, which
can be disruptive to the dining experience of a restaurant.
17. DJ entertainment within a restaurant, therefore, will increase the likelihood of
violations of a Conditional Use Permit and operational standards of the Downtown
Alcohol Beverage Policy that could result in noise, nuisance, and public safety
violations.
18. Resolving violations of a Conditional Use Permit and/or the Campbell Municipal
Code requires extensive use of City resources, including Legal, Planning, and Police
staff, as evidenced by past and ongoing enforcement efforts.
Based upon the foregoing findings of fact, the Planning Commission further finds and
concludes that:
Live entertainment consisting of a disk jockey (DJ) is not allowable under the
Downtown Alcohol Beverage Policy.
2. Due to inconsistency with the Downtown Alcohol Beverage Policy, the proposed use
is not allowed within the applicable zoning district with Conditional Use Permit
approval, and will not comply with all other applicable provisions of this Zoning Code
and the Campbell Municipal Code.
3. Due to inconsistency with the Downtown Alcohol Beverage Policy, the proposed use
is not consistent with the General Plan;
4. Due to inconsistency with the Downtown Alcohol Beverage Policy, the
establishment, maintenance, or operation of the proposed use at the location
proposed will 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.
5. Due to inconsistency with the Downtown Alcohol Beverage Policy, the establishment
will create a nuisance due to litter, noise, traffic, vandalism, or other factors;
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PLN2017-129 ~ 280 E. Campbell Avenue -CUP Modification
6. Due to inconsistency with the Downtown Alcohol Beverage Policy, the establishment
will significantly disturb the peace and enjoyment of the nearby residential
neighborhood;
7. Due to inconsistency with the Downtown Alcohol Beverage Policy, the establishment
will significantly increase the demand on city services;
8. The project is Statutorily Exempt under Section 15270(a) of the California
Environment Quality Act (CEQA), pertaining to projects which a public agency
rejects or disapproves.
THEREFORE, BE IT RESOLVED that the Planning Commission determines that a disk
jockey (DJ) is not an allowable form of live entertainment pursuant to the Downtown
Alcohol Beverage Policy and denying a Modification (PLN2017-129) to a previously-
approved Conditional Use Permit (PLN2014-47) to legalize an unpermitted DJ stage within
an existing restaurant, on property located at 394 E. Campbell Avenue.
PASSED AND ADOPTED this 23rd day of May, 2017, by the following roll call vote:
AYES: Commissioners: Hernandez, Rivlin, Rich, Dodd
NOES: Commissioners: Reynolds
ABSENT: Commissioners: Kendall
ABSTAIN: Commissioners: Young
APPROVED: C/~~~~~~~
Michael Rich, Acting Chair
ATTEST: -~-~~ ~°~..
Paul Kermoyan, Secretary