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CC Resolution 12223RESOLUTION NO. 12223 BEING A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CAMPBELL UPHOLDING AN APPEAL AND APPROVING 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 SALES, 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 City Council did find as follows with respect to file number PLN2017-129: 1. 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 was inconsistent with the Conditional Use Permit approval in that a DJ is not a band as previously approved. 6. To address this inconsistency, the property owner submitted an application to further modify the approved Conditional Use Permit to legalize the DJ booth and entertainment. City Council Resolution -Upholding an Appeal PLN2017-129 - 280 E. Campbell Avenue Page 3 7. The Modification to the previously-approved Conditional Use Permit would continue to allow late night operational hours and general alcohol sales in conjunction with a restaurant and bar. 8. 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. 9. Conformance to the provisions of the Downtown Alcohol Beverage Policy is the basis to which the City reviews new applications for alcohol beverage service. Limitations to the hours of operation, amount of bar area seating, and alcohol beverage service, are necessary to protect the public health, safety and welfare. The Downtown Alcohol Beverage Policy strongly recommends that Conditional Use Permits for establishments for on-site consumption of alcohol beverages be limited to a closing time of no later than 12:00 AM. 10. Sale of alcohol within a restaurant is considered a "liquor establishment", subject to approval of a Conditional Use Permit, consistent with CMC Sec. 21.46.070 and the 'Downtown Alcohol Beverage Policy'. 11. 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. 12. Section 11.2 (Restaurants with Separate Bars), subsection 'd,' of the Downtown Alcohol Beverage Policy states that "live entertainment is limited to live musicians complimentary to the primary purpose of providing meal service". 13. The meaning of "live musicians" in context of the Downtown Alcohol Beverage Policy is articulated in 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. 14. 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). City Council Resolution -Upholding an Appeal Page 4 PLN2017-129 _ 280 E. Campbell Avenue 15. The Downtown Alcohol Beverage Policy is an advisory document allowing the City Council to grant exceptions thereto, upon finding of material differences or factors that may warrant an exception. 16. The subject application warrants an exception to the Downtown Alcohol Beverage Policy to allow a DJ for the following reasons: (a) The business has operated with a DJ for over two years without incident, proving that this style of entertainment can be responsibly incorporated into a restaurant with late-night hours and general alcohol sales in certain circumstances; (b) The DJ's music is channeled through the restaurant's internal speaker system, which significantly limits the attention-getting activity typically associated with a DJ by controlling the volume of the music and reducing the intensity of beats, basslines, and percussion breaks; (c) Dancing has and will continue to be prohibited within the restaurant; (d) Without independent amplification, the DJ is less disruptive than the previously approved four-person band, and can, therefore, function as "background music"; (e) The DJ entertainment is an ancillary activity as evidenced by the minimal promotion of entertainment by the restaurant owner and the continuing focus of the restaurant ownership on the sale of food and beverages; (fj The location of the DJ booth at the corner of the restaurant diminishes the presence of the DJ such that the live entertainment is not a focal point of the restaurant; and (g) The combination of the above factors has resulted in a positive and safe restaurant atmosphere consistent with the overall intent of the Downtown Alcohol Beverage Policy and the various land use policies it implements. 17. Without the particular combination of factors and circumstances, as articulated above, a DJ within a restaurant would not be considered an appropriate form of live entertainment. As such, the Council's action to grant an exception to the Downtown Alcohol Beverage Policy is not to be construed as a precedent for such requests in the future. 18. Notwithstanding the exception for live entertainment, the approval of a Modification to an existing Conditional Use Permit incorporates all applicable operational standards of the Downtown Alcohol Beverage Policy, including a 12:00 AM public closing time and bar area seating comprising no more than 25% of the total seating capacity, such that alcohol beverage service shall continue to be ancillary and subordinate to the primary purpose of serving food. City Council Resolution -Upholding an Appeal PLN2017-129 - 280 E. Campbell Avenue Page 5 Based upon the foregoing findings of fact, the City Council further finds and concludes that: 1. The proposed use is allowed within the applicable zoning district with Conditional Use Permit approval, and complies with all other applicable provisions of this Zoning Code and the Campbell Municipal Code; 2. The proposed use is consistent with the General Plan; 3. The proposed site is adequate in terms of size and shape to accommodate the fences and walls, landscaping, parking ahd loading facilities, yards, and other development features required in order to integrate the use with uses in the surrounding area; 4. The proposed site is adequately served by streets of sufficient capacity to carry the kind and quantity of traffic the use would be expected to generate; j 5. The design, location, size, and operating characteristics of the proposed use are compatible with the existing and future land uses on-site and in the vicinity of the subject property. 6. The establishment, maintenance, or operation of the proposed use at the location i proposed 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. ~ 7. The establishment will not result in an over-concentration of these uses in the surrounding area; i ~ 8. The establishment will not create a nuisance due to litter, noise, traffic, vandalism, or other factors; ~ 9. The establishment will not significantly disturb the peace and enjoyment of the nearby residential neighborhood; 10. The establishment will not significantly increase the demand on city services; ' 11. As conditioned and with an exception granted by the City Council as to the form of ~ live entertainment, the establishment will be consistent with the Campbell Downtown Alcohol Policy; ~ 12. The project is Categorically Exempt under Section 15060(c)(2) of the California Environment Quality Act (CEQA), pertaining to activities that will not result in a I direct or reasonably foreseeable indirect physical change to the environment. City Council Resolution -Upholding an Appeal PLN2017-129 - 280 E. Campbell Avenue Page 6 THEREFORE, BE IT RESOLVED that the City Council upholds an appeal and approves a Modification (PLN2017-129) to apreviously-approved Conditional Use Permit (PLN2014- 47) to legalize an unpermitted DJ stage within an existing restaurant, on property located at 280 E. Campbell Avenue, subject to the attached Conditions of Approval (attached Exhibit "A"). PASSED AND ADOPTED this 5th day of September, 2017, by the following roll call vote: AYES: COUNCILMEMBERS : Waterman, Cristina, Landry, Resnikoff, Gibbons NOES: COUNCILMEMBERS : None ABSENT: COUNCILMEMBERS : None ABSTAIN: COUNCILMEMBERS : None APPROVE ~ S~~ EI' abeth "Liz" Gibbons, Mayor ATTEST: / Wen y pod, ity Clerk EXHIBIT A CONDITIONS OF APPROVAL Conditional Use Permit Modification (PLN2017-129) 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 fora 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 E. Campbell Avenue. The project shall substantially conform to Written Description, dated as received by the Community Development Department on May 4, 2017, and the 'Final Floor Plan' approved by the Community Development Director pursuant to Condition of Approval No. 5, except as may be modified by the conditions of approval contained herein. 2. Approval Expiration: The Modified Conditional Use Permit approved herein ("Approval") shall be valid in perpetuity on the property subject to continued operation of the restaurant and bar, and maintenance of a valid ABC liquor license. Abandonment, discontinuation, or ceasing of operations for a continuous period of twelve months shall void the approval. 3. Previous Conditions of Approval: The previously approved Conditions of Approval provided in Planning Commission Resolution No. 4082 (PLN2012-48) and No. 4149 (PLN2014-47) are hereby void and permanently superseded in their entirety by the Conditions of Approval specified herein. 4. signage: No signage has been approved as part of this development application. New signage shall not be installed prior to approval of a sign permit as required by CMC Sec. 21.10.060.x. The allowable sign materials for the project site shall include enameled metal, painted wood, cast metal, painted fabric (awning signage), and similar materials. Plastic signage of any type, whether individual letters or as part of a box (or cabinet), shall not be approved. 5. Final Floor Plan: Within one (1) month of this Approval, the applicant shall provide a revised floor plan of the restaurant and bar, consistent with Conditions of Approval contained herein, including, but not limited to the approved seating capacities. The 'Final Floor Plan' shall be scaled and dimensionalized and depict appropriate occupancy, exiting, and accessibility notes and details, and be prepared to the satisfaction of the Community Development Director. Exhibit A -Conditions of Approval - 280 E. Campbell Avenue Page 2 PLN2017-129 -Modification to Previous Conditional Use Permit 6. Building Permit: Within one (1) month of this Approval, the applicant shall submit an application for a building permit to legalize the construction of the DJ booth. The construction plans submitted for this building permit may also include the 'Final Floor Plan' required by Condition of Approval No. 5. 7. Operational Standards: Consistent with Downtown Alcohol Beverage Policy and other City standards, any restaurant operating pursuant to the Conditional Use Permit approved herein shall conform to the following operational standards. a. Approved Use: The approved use is a "restaurant, standard" with "late-night activities, ancillary sale of distilled spirits ("liquor establishment") and live entertainment, as defined by the Campbell Municipal Code. At no time shall the restaurant be operated as a stand-alone bar/tavern or nightclub. b. Restaurant Seating/Patron Occupancy: Total indoor patron occupancy shall be limited to 157 seated patrons, consisting of 118 dining area seats and no more than 39 bar area seats (25%), inclusive of accessible seating, however, excluding seats for those waiting for service, subject to the maximum occupancy capacities of certain rooms as determined by the California Building Code (CBC). It is the responsibility of the business owner to provide adequate entrance controls to ensure that patron occupancy is not exceeded. c. Maximum Occupancy Sign: The business owner shall install a new maximum occupancy sign of a size to be determined by the Community Development Director, conspicuously posted within the premises, which shall include the maximum occupancy noted herein and include a visual depiction of the 'Final Floor Plan' prepared pursuant to Condition of Approval No. 5. d. Bar Area Seating: The bar area shall be composed of thirty-nine (39) bar seats as shown on the 'Final Floor Plan'. No part of the dining area, including the seats adjacent to the DJ booth, shall be considered part of the bar area. e. Floor Plan: All chairs and tables within the dining areas shall consist of standard-height furniture (i.e., no "high-top" seating and tables). All tables and chairs shall be placed in such a manner to allow sufficient area for dining and shall not be stacked or removed from the dining area or placed outside. At no time shall the seating be reconfigured to created large open spaces for patrons to congregate, dance, drink, or socialize. f. Hours of Operation: Hours of operation shall be as follows. By the end of 'Business Hours' all patrons shall have exited the restaurant. By the end of the 'Operational Hours' all employees shall be off the premises. • Business Hours 11:00 AM - 12:00 AM, Saturday -Sunday • Operational Hours: 9:00 AM - 1:00 AM, Saturday -Sunday Exhibit A -Conditions of Approval - 280 E. Campbell Avenue Page 3 PLN2017-129 -Modification to Previous Conditional Use Permit g. Patron Service: Patrons shall not be served while standing, either within bar area or in the dining room area. h. Food Service: Full menu food service shall be provided at all times during the Business Hours in the dining, outdoor seating, and bar areas (i.e., the kitchen shall not be closed). Bar Area Meal Service: Meal service shall be available in the bar area at all times. Alcohol Beverage Service: Alcohol beverage service in the dining area shall only be allowed in conjunction with food service. The dining area shall not be converted to a bar area or dance area. k. Live Entertainment: Live entertainment shall be permitted, subject to the following restrictions: i. Type: Live entertainment is limited to "disk jockeys" (DJs) playing recorded music. No other form of live entertainment is permitted. ii. Location: Live entertainment shall be conducted from within the DJ booth depicted on the 'Final Floor Plan' and shall not be conducted elsewhere within the restaurant or on the outside patio. iii. Amplification: Music generated by the DJ shall be channeled through the restaurant's built-in speaker system. Astand-alone amplification system is prohibited. iv. Hours: Live entertainment shall be permitted from 6:00 PM to 10:00 PM, daily, except that live entertainment may begin at 2:00 PM on six (6) specified days of each calendar year. The operator shall maintain a list of these six days, which shall be made available to the Community Development Director upon demand. v. Noise: Noise from the live entertainment shall not be audible to a person of normal hearing capacity from any residential property or from 50 feet from the business. In the event verified complaints are received by the City regarding such noise, the Community Development Director may immediately require curtail the hours of live entertainment, pursuant to Condition of Approval No. 8. vi. Live Entertainment Permit: The business owner shall secure approval of a Live Entertainment Permit from the City Council in compliance with CMC Section 5.24. vii. Dancing: No part of the restaurant shall be cleared to create a dance floor nor shall the restaurant staff encourage or allow patrons to dance. viii. Doors and Windows: Doors and windows shall remain closed at all times during live entertainment activity, except for one small man-door located approximately in the middle of the folding door system frontage to be Exhibit A -Conditions of Approval - 280 E. Campbell Avenue Page 4 PLN2017-129 -Modification to Previous Conditional Use Permit opened only when used for people to access between the outdoor patio and the interior restaurant space. Otherwise, this door is to remain closed. ix. Security: On-site security shall be provided as required by a Live Entertainment Permit. x. Cover Charge: At no time shall a cover charge be required or a donation necessary in order to patronize the establishment. I. Outdoor Seating: Outdoor seating shall be considered part of the dining area subject to all restrictions herein. In addition, the following requirements apply: i. All outdoor patio furniture (including tables, chairs, umbrellas, and heaters) shall be in substantial conformance with the details and specifications provided in the original approved project plans, dated as received by the Community Development Director on August 7, 2012. Changes to the outdoor patio furniture shall require approval of the Community Development Director prior to installation. ii. Total patron occupancy in the outdoor seating area shall be limited to 22 seated patrons, exclusive of the shared patio area. iii. Use of the outdoor seating area shall cease by 11:00 PM, daily. At such time, all chairs shall be stacked, stored, or otherwise secured to prevent unauthorized use. iv. All outdoor furniture shall be kept clean and in good repair and replaced and/or fixed as necessary. v. The business owner shall maintain comprehensive liability insurance and list the City as an "additionally insured", consistent with CMC Sec. 21.10.060.H(6). Before the issuance of a Business License, the business owner shall furnish to the city a certificate of insurance. m. Queuing Management and Security Plan: If required by the Community Development Director, the business owner shall prepare, to the satisfaction of the Community Development Director and Police Chief, a 'Queuing Management and Security Plan', which shall indicate the location of a queuing line; number and qualifications of security personnel; number, placement, and accessibility of security cameras; and any other pertinent information as required by the Police Department. n. Loud Speakers: Exterior loud speakers, exterior audio sound systems, and/or public address systems are prohibited. ! Exhibit A -Conditions of Approval - 280 E. Campbell Avenue Page 5 PLN2017-129 -Modification to Previous Conditional Use Permit o. Loitering: There shall be no loitering allowed outside the business and within the outside dining area. The business owner is responsible for monitoring the premises to prevent loitering. p. Trash and Clean Up: Interior clean-up activity shall be restricted to the approved 'Operational Hours'. All trash removal shall be done between 6:00 AM and 11:00 PM daily and conducted in compliance with the maintenance agreement between the City of Campbell and the property owner. q. Liquor License: The applicant shall obtain and maintain in good standing a Type 47 license from the State Department of Alcoholic Beverage Control for the sale of alcoholic beverages. The license shall include the Business Hour restrictions consistent with the Conditional Use Permit approved herein. A copy of the issued license shall be provided to the Community Development Department prior to issuance of a Business License. r. Alcohol Sales: The monthly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period, consistent with ABC licensing regulations. The business owner shall provide sales records on demand to the City to verify compliance with this standard. s. Employee Training: The establishment shall use an employee training manual that addresses alcoholic beverage service consistent with the standards of the California Restaurant Association and the Department of Alcoholic Beverage Control. t. Designated Driver Program: The establishment shall maintain and actively promote a designated driver program (e.g., complimentary non-alcoholic beverages for designated drivers), including posting in a conspicuous place contact information for local designated driver services. u. Taxicab Service: The establishment shall post in a conspicuous place the telephone numbers of local taxicab services. v. Outdoor Activity: Other than outdoor seating, no outdoor activity (e.g., cooking) is permitted in association with the establishment. w. Outdoor Storage: Outdoor storage, including but not limited to, linens, kegs, cartons, shall not be permitted. x. Smoking: "No Smoking" signs shall be posted on the premises in compliance with CMC Section 6.11.060. y. City Meetings: At the discretion of the Chief of Police, periodic meetings will be conducted with representatives from the Police Department/Alcohol Beverage Control for on-going employee training on alcoholic beverage service to the general public. Exhibit A -Conditions of Approval - 280 E. Campbell Avenue Page 6 PLN2017-129 -Modification to Previous Conditional Use Permit z. Doors and Windows: Notwithstanding the requirements provided in Condition of Approval No. 7.k., above, doors and windows shall remain closed after 10:00 PM. 8. Revocation of Permit: Operation of the restaurant and bar with live entertainment, late night operations and general alcohol service pursuant to the Conditional Use Permit approved herein is subject to Sections 21.68.020, 21.68.030 and 21.68.040 of the Campbell Municipal Code authorizing the appropriate decision making body to modify or revoke a Conditional Use Permit if it is determined that the sale of alcohol, hours of operation, and/or live entertainment has become a nuisance to the City's public health, safety or welfare or for violations of the Conditional Use Permit or any standards, codes, or ordinances of the City of Campbell. The business owner shall be obligated to cover the actual cost of all staff time associated with revocation proceedings. This obligated may be enforced by the City as permitted by law. At the discretion of the Community Development Director, if the establishment generates three (3) verifiable complaints related to violations of conditions of approval, live entertainment, and/or the service of alcohol within a six (6) month period, a public hearing before the City Council, upon recommendation by the Planning Commission, may be scheduled to consider modifying conditions of approval or revoking the Conditional Use Permit. The Community Development Director may commence proceedings for the revocation of the Conditional Use Permit upon the occurrence of less than three (3) complaints if the Community Development Director determines that the alleged violation warrants such an action. The Director may also at such time, restrict the establishment's hours of operation and/or hours for live entertainment. In exercising this authority, the decision making body may consider the following factors, among others: a. The number and types of Police Department calls for service at or near the establishment that are reasonably determined to be a direct result of patrons actions; b. The number of complaints received from residents, business owners and other citizens concerning the operation of an establishment, c. The number of arrests for alcohol, drug, disturbing the peace, fighting and public nuisance violations associated with an establishment; d. The number and kinds of complaints received from the State Alcoholic Beverage Control office and the County Health Department; and e. Violation of conditions of approval.