Planning Commission Agenda Item

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Geraldine Barker
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1 Planning Commission Agenda Item TO: THRU: FROM: Chair Glasgow and Members of the Planning Commission Anna Pehoushek Assistant Community Development Director Robert Garcia Senior Planner SUBJECT PUBLIC HEARING: Conditional Use Permit No The Tilted Kilt, located at 1625 West Katella Avenue, Stadium Promenade center. SUMMARY The applicant is requesting to modify certain existing conditions of approval associated with Conditional Use Permit (CUP) No related to an Alcoholic Beverage Control (ABC) Type 47 License (On-Sale General for a Bona Fide Eating Place). RECOMMENDED ACTION Staff recommends that the Planning Commission review the proposal and take the appropriate action. The Planning Commission can take one of the following actions: Direct staff to return with a resolution to approve one or more of the requested modifications to the existing conditions of approval with required findings and conditions. Direct staff to return with a resolution to deny the requested modifications to the existing conditions of approval with required findings. AUTHORIZATION/GUIDELINES Orange Municipal Code (OMC) Section C. and Table B authorizes the Planning Commission to review and take action on Conditional Use Permits for eating establishments modifying conditions of approval for on-site sales and consumption of alcohol beverages in the Commercial Recreation (C-R) zone. Section requires that the project be reviewed in accordance with California Environmental Quality Act provisions and the City of Orange Environmental Review Guidelines.

2 PUBLIC NOTICE Page 2 On February 22, 2018 the City sent a Public Hearing Notice to a total of 101 property owners/tenants within a 300-foot radius of the project site, and persons specifically requesting notice. The project site was also posted in two locations with the notification on that same date. ENVIRONMENTAL REVIEW Categorical Exemption: The proposed project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State Guideline Section (Class 1 Existing Facilities) because the proposal only involves the modification of certain existing conditions of approval for the licensing of on-site sales and consumption of alcoholic beverages. There is no environmental public review required for a categorical exemption. PROJECT BACKGROUND Applicant: OC Restaurant Group dba The Tilted Kilt Property Owner: Sywest Development Property Location: 1625 W. Katella Ave, Stadium Promenade General Plan Land Use Urban Mixed Use (UMIX) Element designation: FAR; du/acre Zoning Classification: Commercial Recreation (C-R) Old Towne: Not Applicable Specific Plan/PC: Not Applicable Site Size: 24.5-acre site Circulation: The building is located in the Stadium Promenade center that is accessed via Katella Avenue, which is considered a Smart Street and Main Street, which is a Primary Arterial. Existing conditions: 6,892 SF restaurant with two separate outdoor patios consisting of 1,836 SF and 1,160 SF Surrounding land uses Surrounding property to the north, south, east, and west include a mix of and Zoning: industrial, commercial, and office tenants in the CR zone. Previous MJSP & ND : On September 10, 1996, the City Council Applications/Entitlements: approved the demolition of a drive-in theatre to construct the majority of the existing center. MJSP & DRC : On July 20, 2005, the Design Review Committee approved the construction of approximately 18,000 square feet of multi-tenant commercial buildings and the demolition of 12,493 square feet from existing Building Number 3 to accommodate greater interior vehicular and pedestrian flow. DRC : On November 17, 2010, the Design Review Committee approved minor façade changes to the subject building including paint and signs. CUP No & DRC , Resolution No. PC: On June 19, 2006, the Planning Commission approved the construction of the building and a CUP for an ABC Type 47 license (on-sale general at a bona fide

3 PROJECT DESCRIPTION Page 3 eating place). The tenant was Johnny Carino s. This CUP was replaced with CUP and CUP & DRC , Resolution No. PC 27-12: On August 6, 2012, the Planning Commission approved a request to increase the size of the outdoor patio to 1,836 SF, modify the exterior of the building, modify conditions of approval of existing CUP , and accept the voluntary surrender of CUP CUP , Resolution No. PC 08-14: On June 16, 2014 the Planning Commission approved a request to add an outdoor patio of 1,160 SF to the existing restaurant. The Tilted Kilt has been operating in Orange since The restaurant holds an ABC Type 47 License. The applicant is requesting the modification of conditions 23, 26, 29, and 41 to CUP , Resolution No. PC (Attachment 4). These conditions are: Condition No. 23: No alcoholic beverages shall be sold from any temporary locations on the premises such as ice tubs, barrels, or any other containers. Condition No. 26: At no time shall there be a fee for entrance/admittance into the premises. Condition No. 29: There shall be no amplified music, disc jockey, karaoke, or dancing permitted on the premises at any time. Condition No. 41: Live entertainment is not permitted. The modifications to the listed conditions would allow for outdoor portable bars, an entrance fee to the premises for Pay-Per View (PPV) sporting events, and non-amplified soloists performer and up to a three member band, to perform on the exterior patios of the premises (Attachment 1). Development Standards No changes are proposed to the lot size, building square footage, building height, or parking as part of this application. Therefore, a comparison of the building to existing development standards has not been conducted. APPLICATION(S) REQUESTED/ REQUIRED FINDINGS Conditional Use Permit: The applicant is requesting to modify certain existing conditions of approval to approved CUP No related to an ABC Type 47 License. Required Findings: 1. A Conditional Use Permit shall be granted upon sound principles of land use and in response to services required by the community. 2. A Conditional Use Permit shall not be granted if it will cause deterioration of bordering land uses or create special problems for the area in which it is located.

4 Page 4 3. A Conditional Use Permit must be considered in relationship to its effect on the community or neighborhood plan for the area in which it is located. 4. A Conditional Use Permit, if granted, shall be made subject to those conditions necessary to preserve the general welfare, not the individual welfare of any particular applicant. ANALYSIS/STATEMENT OF THE ISSUES Issue 1: Modification to Existing Conditions of Approval The applicant is requesting to modify four existing conditions of approval. Each of the four conditions has been analyzed independently in the Orange Police Department Memorandum (Attachment 3) and by staff. Condition No. 23: No alcoholic beverages shall be sold from any temporary locations on the premises such as ice tubs, barrels, or any other containers. Request modifying Condition No. 23 to read: "Alcoholic beverages may be sold from portable bars operated by employees on the two (2) respective patios as shown on the floor plan. Said portable bars shall be in compliance with all ABC rules, laws, and requests. Additionally, the use of portable bars shall be strictly limited to when the business offers, sells, and serves food". During the course of their investigation, the City of Orange Police Department requested the following additional information from the applicant s representative: 1. Number of beverages to be served from the bars 2. Final drawings of the locations of the bars The requested information and final drawings had not been provided by the Tilted Kilt s representative by the completion of the Orange P olice Department s review. In addition, the Tilted Kilt s representative told the Planning Department, that they would not be providing the additional information and final drawings. Therefore, the City of Orange Police Department is opposed to any modification of Condition No. 23. Planning staff had asked for revised drawings indicating the exact location of the proposed portable bars in the outdoor patios, and if located adjacent to an exterior patio wall, to provide the height of the exterior patio wall. Subsequent to Orange Police memorandum and repeated requests for revised drawings indicating the exact locations of the portable bars and wall heights, the Tilted Kilt s representative finally did submit revised drawings indicating the location of the proposed portable bars and photographs of the exterior patio walls. Although the size of the portable bars are not indicated on the proposed plans nor have specifications been provided, the applicant has indicated verbally that the portable bars would be approximately 72 in length, 48 in height, and 36 in width. Based on the proposed location for the portable bars and the height of the adjacent exterior patio wall, Planning staff is not opposed to the request for a modification to the existing condition of approval.

5 Page 5 Condition No. 26: At no time shall there be a fee for entrance/admittance into the premises. Request modifying Condition No. 26 to read: "Fee for entrance/admittance to the premises shall be permitted only for Pay-Per View (PPV) sporting events. Additionally the applicant shall, if determined necessary by the Orange Police Department, provide up to 2 security personnel to be present during the PPV event(s) and up to an hour after the event(s). It is the City of Orange Police Department's opinion that the Tilted Kilt Pub & Eatery's desire to charge a cover fee to view paid special events (i.e. Ultimate fighting PPV) limits the business' ability to be fully open to the general public. This is not consistent with the practices of surrounding businesses and businesses in the City of Orange. The majority of restaurant establishments in the City of Orange are restricted, per their CUP, from hosting special events or charging a cover fee. These practices create disturbances when patrons are refused entrance and encourage customers to enter via the patio or other means. Therefore the City of Orange Police Department is opposed to any modification of Condition No. 26. It has been the City s practice for the last ten years to include a no entrance fee for all ABC Type 47 licenses for bona fide eating establishments. As such, eating establishments with ABC Type 47 licenses are intended to provide food service to families and minors without any restrictions at all times. Allowing an entrance fee restricts the ability for individuals to enjoy a meal at a food establishment intended to serve families, including minors, even if an entry fee is just for PPV events. Planning staff is opposed to this request. Condition No. 29: There shall be no amplified music, disc jockey, karaoke, or dancing permitted on the premises at any time. Condition No. 41: Live entertainment is not permitted. Limited entertainment shall be permitted as follows: Non-amplified soloists performer (guitarist, violinist, bagpiper), and up to a three member band, to perform on the exterior patios of the premises. No entertainment shall be permitted within the interior of the premises. Entertainment shall be limited to Holidays (regardless of the day of the week) and Thursdays through Sundays. All entertainment shall cease no later than 11:00 p.m., music performances shall be limited to classical, Celtic, and Top 40. Music and sound levels shall comply with the City of Orange noise ordinance and shall not disturb the surrounding businesses. There shall be no dancing or dance floor permitted on any part of the premises. It is the Police Department s opinion that live entertainment promotes excessive drinking which in turn adversely affects crime, public safety, and police resources. This opinion has been consistent with recent CUP's. Therefore, the City of Orange Police Department is opposed to any modification of Conditions No. 29 and 41.

6 Page 6 There are other eating establishments within the Stadium Promenade that have been permitted to have amplified music and live entertainment. However, these establishments are limited to having amplified music and live entertainment within the enclosed building. None are permitted to have karaoke, or dancing permitted on the premises at any time. Planning staff is not opposed to this request, provided that the request is consistent with other existing establishments at the Stadium Promenade. Issue 2: Existing Alcohol Entitlements within the Stadium Promenade Center For information purposes, staff identified the following 8 facilities with CUPs to sell alcohol within the Stadium Promenade. Existing Alcohol-Related Entitlements Establishment Name CUP Entitlement Address Lazy Dog Café CUP approved a Type 47 (On-Sale 1623 W. Katella Ave # 212 Old Crow Smokehouse CUP approved a Type 47 (On-Sale 1535 W. Katella Avenue King s Fish House CUP approved a Type 47 Type 47 (On-Sale 1521 W. Katella Avenue Prime Cut Café and Wine CUP approved a Type 47 (On-Sale Bar 1547 W. Katella Avenue #101 Chili s Grill and Bar CUP approved a Type 47 (On-Sale 1411 W. Katella Avenue The Pint House CUP approved a Type 47 (On-Sale W. Katella Avenue #102 Spin Neapolitan Pizza CUP for a Type 41 (On-Sale Beer and Wine Eating Place) license 1623 W. Katella Avenue The Tilted Kilt CUP approved a Type 47 (On-Sale 1625 W. Katella Avenue There are six existing businesses that have an alcohol beverage license within a 600 radius of the Tilted Kilt building. All of the businesses are within the Stadium Promenade center, five have a Type 47 (On-Sale General Bona Fide Public Eating Place) license, and one has a Type 41 (On-Sale Beer and Wine at a Bona Fide Public Eating Place). Issue 3: Sensitive Receptors The OMC requires a Conditional Use Permit for the sale of alcoholic beverages to ensure there will be no adverse impact on surrounding land uses or allow the availability of alcoholic beverages to minors. When reviewing alcohol permits, the Zoning Ordinance details specific land uses that are sensitive to alcohol activities, but does not establish any specific distances for these uses. The State Alcoholic Beverage Control Board investigation requires applicants to identify the sensitive land uses within 600 feet of the site. There are no sensitive receptors within 600 feet of the site. Issue 4: Census Tract Alcohol and Crime Statistics Information The Orange Police Department s Vice Unit reviewed the proposal and finds that the census tract where the alcohol license is located is over concentrated with alcohol licenses as follows:

7 Page 7 Alcohol Licenses Existing Allowed On-Sale Licenses 15 5 Off-Sale Licenses 2 4 Census tracts are defined as small geographical areas established by local committees and approved by the Census Bureau, which contain a population segment with relatively uniform economic and social characteristics and clearly identifiable boundaries averaging approximately 1,200 households. The ABC establishes an over concentration of alcohol licenses based on the average of alcohol licenses versus the population in a given census tract. However, the ABC and the City recognize that licenses should be reviewed on a case-by-case basis to ensure that such sales will not adversely affect surrounding residents, businesses, and institutions and to ensure that any such use operates in a manner compatible with existing and future adjacent uses. The current concentration levels do not favor the modification of existing conditions of approval for a Type 47 License (On-Sale General for a Bona Fide Eating Place). The number of existing on-sale establishments in the census tract is 15 with 5 being allowed. The current concentration level is triple what is allowed in the tract. However, in this case there is already a CUP for the existing operator. The Tilted Kilt has been operating for 36 months, therefore the number of on-sale ABC licenses will not increase. Crime Statistics Census Tract Arrests Citywide Average Arrests Percent Difference % The applicant is applying for a modification of existing conditions of approval in a Reporting District (RD 45W) that is considered a higher crime area. The Police Department Memorandum stated that in 2016, crime figures show 96 crimes in this reporting district. In 2016, the average reported crimes per district citywide was 68, therefore, the crime statistics indicate this district had 72% more crimes than the average district in the City. ADVISORY BOARD RECOMMENDATION None required ATTACHMENTS/EXHIBITS Attachments to Report: 1. Applicant s Letter of Justification 2. Vicinity Map 3. Orange Police Department Memorandum dated June 26, Resolution No. PC Existing Alcohol Licenses within 600 feet of the Site 6. Photographs of Existing Outdoor Patio Walls

8 Page 8 Exhibits A. Proposed Plan (date labeled ) cc: Michael Ayaz Blake & Ayaz, A Law Corporation 2107 N. Broadway, Suite 106 Santa Ana, CA 92706

Planning Commission Agenda Item

Planning Commission Agenda Item TO: THRU: FROM: Chair Glasgow and Members of the Planning Commission Anna Pehoushek Assistant Community Development Director Vidal F. Márquez Assistant Planner SUBJECT PUBLIC