CC Resolution 12171 (2)RESOLUTION NO. 12171
BEING A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF CAMPBELL DENYING AN APPEAL (PLN2017-082) AND
UPHOLDING THE PLANNING COMMISSION'S APPROVAL OF
A MODIFIED CONDITIONAL USE PERMIT (PLN2017-018) FOR
THE PROPERTY 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 City Council finds as follows with regard to file number 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 (or the City Council on appeal) 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 (or the City Council on appeal) 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.
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
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201 Orchard City Drive -Conditional Use Permit (PLN2017-018) Page 2 of 6
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-9.1c), 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).
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).
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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 2014, City staff proactively met with alcohol serving downtown business owners
to confirm their understanding of the regulations and conditions of approval in
which they operate. This outreach program was intended to address repeated calls
for service and observation that some downtown businesses were not complying
with their conditions of approval.
20. 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).
21. 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.
22. The violations, described herein, have occurred during the late night hours when
live entertainment was offered.
23. 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 trying 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.
24. 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.
25. 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 occupancy 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
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201 Orchard City Drive -Conditional Use Permit (PLN2017-018) Page 4 of 6
the conditioned occupancy limitation of 16 patrons and helps double the overall
space to bring in more patrons than permitted.
Based upon the foregoing findings of fact, the City Council 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.
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201 Orchard City Drive -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 City Council 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.
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.
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201 Orchard City Drive -Conditional Use Permit (PLN2017-018) Page 6 of 6
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 agency'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 City Council adopts a Resolution, denying
the appeal and upholding the Planning Commission's approval of a modified Conditional
Use Permit (PLN2017-018) for the property located at 201 Orchard City Drive subject
to the attached Conditions of Approval (attached Exhibit "A").
PASSED AND ADOPTED this 6th day of June, 2017, by the following roll call vote:
AYES: COUNCILMEMBERS: Cristina, Landry, Waterman, Resnikoff, Gibbons
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
ABSTAIN: COUNCILMEMBERS: None
APPROVED ~ /,v!/
ATTEST:.
Wendy od, City Clerk
a h "Liz" Gibbons, Mayor
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 201 Orchard 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 Niaht 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:
Days of the Week Indoor Operations Outdoor Operations
Daily" 7:00 a.m. to 12:00 a.m. Subject to approval by City
er COA #11
'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 ropert maintenance shall be com lete 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 lower and/or upper exterior
patio(s), unless otherwise approved by the City, subject to the following:
a. Lower Patio (412- 07-025 private property owned by others): Use of the lower
patio may be approved subject to approval of a Conditional Use Permit for the
subject property. The CUP application shall include a signed and notarized
Agreement between the business owners and the subject land owner for use of
the subject patio.
b. Upper Patio (412-07-022 public property owned by City): Use of the upper patio
may be approved subject to obtaining anon-transferrable license agreement
between the business owners and the City of Campbell. The license agreement
shall include a provision for fair compensation for use of the patio.
c. ABC License: Applicant shall obtain updated licensing from the Department of
Alcoholic Beverage Control allowing use of the lower and/or upper patio areas,
consistent with the provisions of this CUP and the modified conditions of
approval (e.g., hours of operation, no live entertainment, no "night club").
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 will be located, to the satisfaction of the Community
Development Director. These stations shall be a mixture of fixed and non-fixed
locations to complement the seating arrangement.
d. Music: Music should be background and incidental to the dining experience as
not to create a situation that would hinder a normal conversation, where voices
need to elevate to compensate for the music's volume.
e. Floor Plan: The applicant shall submit a building permit application, subject to
approval by the Community Development Director, to redesign the interior floor
plan to include a mixture of fixed and non-fixed tables for the purpose of creating
restaurant seating for larger dining parties, while preventing an area for dancing.
Conditions of Approval
Conditional Use Permit (PLN2017-018)
Page 4 of 4
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: If required by the Police Department, security personnel
shall be approved by 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.
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 Sign Ordinance, 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.
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