STAFF REPORT PLANNING COMMISSION REGULAR MEETING OF AUGUST 4,

STAFF REPORT PLANNING COMMISSION REGULAR MEETING OF AUGUST 4, 2009 PREPARED BY: Jeff Zilm, Senior Planner jzilm@ci.brentwood.ca.us AGENDA ITEM & FILE NUMBER: Item No. 3; CUP No. 09-09 PROJECT DESCRIPTION: DATE OF NOTICE: ACREAGE: ZONING: GENERAL PLAN DESIGNATION: OWNER/APPLICANT: PREVIOUS ACTION: An application for a conditional use permit to allow the operation of a 5,000-square-foot lounge/nightclub, known as Club O, in a 10,000- square-foot commercial/retail building within Lone Tree Crossings, located at 6830 Lone Tree Way (APN 019-010-064) A public hearing notice was published in the Brentwood Press and mailed to property owners within 300 feet of the site on July 10, 2009 One-acre parcel PD-38 (Planned Development 38) Zone, Subarea E General Commercial Georgia Peach s Furniture/Tiffany Tran Planning Commission approved MS 365-05, by Resolution No. 06-36, to subdivide 9.69 acres into 9 commercial lots and CUP 05-30 by Resolution No. 06-37, to establish a drive-through use within Building G on May 16, 2006 Planning Commission approved DR 05-29, by Resolution No. 06-35, to allow for the construction of a 117,368 sq. ft. commercial retail center on June 6, 2006 Planning Commission approved DR 05-29 A-1 by Resolution No. 08-040, for a one-year time extension to establish a drive-through use within Building G on July 1, 2008

BACKGROUND: The applicant has requested approval of a conditional use permit to occupy approximately 5,000 square feet of an existing 10,000 square foot building for a lounge/night club known as Club O, within Building A1 of Lone Tree Crossings, located on the north side of Lone Tree Way, between Fairview Avenue and Giannini Ranch Road. The project site is within the PD-38 Zone (Subarea E), which conditionally permits alcohol sales as well as food service uses, pursuant to 17.488.011 (A) (3) of the Brentwood Municipal Code. Given that Club O would serve alcohol, a conditional use permit is required for the proposed use. If the nightclub was proposed and did not serve alcohol a conditional use permit would still be needed because a nightclub is not listed under permitted or conditionally permitted uses. Conditionally permitted uses are those uses which, by their nature, require special consideration so that they may be located properly with respect to the objectives of the Municipal Code and with respect to their effects on surrounding uses and properties. In order to achieve these purposes, the Planning Commission is empowered to approve, conditionally approve, or deny applications for use permits. PROJECT DESCRIPTION: The proposed use will occupy approximately 5,000 square feet of a 10,000 square foot commercial/retail building. The remaining 5,000 square feet will be occupied by a future furniture store, which is also owned by the applicant of this lounge/nightclub. The proposed use would primarily function as a lounge/nightclub offering evening entertainment for adults and secondarily as an event center providing a location for social gatherings such as family reunions, banquets, anniversaries and weddings and other similar private events. The proposed hours of operation for the lounge/nightclub will be Thursday through Sunday from 8:00 p.m. to 2:00 a.m. If it is reserved during normal business hours the lounge would be closed to the public and if it is scheduled outside the normal operating hours it would be a private function and only members of the private party would be served. The applicant will be obtaining a full-service liquor license in order to serve alcoholic beverages to its patrons. Hors d oeuvres/finger food will be provided nightly, by a local catering service, and can be ordered from a bar menu. No kitchen facilities (grill, hood, grease trap, etc.) will be provided. The applicant will still, however, need to submit plans to the County Health Department for review and approval of the preparing and serving of the catered food, prior to opening of the club. The last call for drinks will be 1:00 a.m. and the lounge will be closed at 2:00 a.m. The lounge will have a large dance floor and a disc jockey for nightly dancing. Tables and chairs will be placed around the dance floor for the general public and a VIP area, located off to one side of the dance floor, will be available for special guests. Security will be a high priority at this establishment. Five professional security guards will be on duty during all hours of operation. Two will be stationed at the main entrance, two will be walking around the inside of the lounge and one will be stationed at the rear entrance. Customers entering the lounge will be required to show proper identification and will be screened by security using a hand-held wand scanner. The applicant is proposing that a strict dress code will be enforced. Casual business attire (collared shirts, dress shoes and similar attire) would be required for all patrons. No baggy pants, baseball caps or cut-off shorts would be allowed. 2

The proposed business would employee a minimum of 14 people (5 Security, 2 Bartenders, 6 Waitresses, and 1 Disc Jockey). If the need arises additional people would be hired. It is estimated that during the hours this proposed use would be open to the public anywhere from 100-300 patrons could be in attendance. SITE DESCRIPTION: The proposed project is located within an approximate 117,368-square-foot commercial center known as Lone Tree Crossings, consisting of nine buildings on a total of 9.69 acres, subdivided into nine parcels, and located east of Giannini Ranch Road, west of Fairview Avenue extension and north of Lone Tree Way. The proposed business would be located in the northeast portion of the Center within Building A1, directly north of the recently opened Firestone building. Access to Building A1 is currently provided via the main driveway off Lone Tree Way, centrally located on the site, one secondary access via the Fairview Avenue extension located on the east side of the property and a third access via a drive aisle from the Lone Tree Center development to the west. The main driveway allows right-in and right-out movements only. The Fairview Avenue extension access and the main entrance access to the Lone Tree Center are signalized intersections, providing full turning options. Table 1 details the adjacent properties and their current uses, zoning, General Plan designations, and property owners. Table 1. Existing Use Zoning General Plan Owner North Vacant; Rose Garden PD-38; PD-65 Very High Density; Medium Density Orfanos Tre; Various South Vision at Brentwood Subdivision PD-35 Low Density Various East Acorn Self Storage PD-38 General Commercial West Lone Tree Center PD-38 General Commercial Moita Tre/JMI Properties Lone Tree Center LLC ANALYSIS: Conditionally permitted uses are those uses which, by their nature, require special consideration so that they may be located properly with respect to the objectives of the Municipal Code and with respect to their effects on surrounding uses and properties. In order to achieve these purposes, the Planning Commission is empowered to approve, conditionally approve, or deny applications for use permits. 3

Land Use Compatibility One of the primary concerns in reviewing a conditional use permit application is the effect of the proposed use on surrounding properties. The location of the proposed lounge/nightclub is in an area of mostly commercial uses consisting of shopping centers with retail stores and personal service uses. Lone Tree Crossings was approved for a total of nine buildings. Currently the only occupied building in this center is the Firestone building (Building B ). Building C has been partially constructed and Building A1, where the proposed lounge/nightclub will go, is currently completing construction in anticipation of opening of the lounge/nightclub and furniture store. The rest of the 9.69-acre site is vacant. The nearest single-family residential use is approximately 350 feet northeast of the site in the Rose Garden development and located between the residential use and the proposed use are the Union Pacific Railroad tracks and the Acorn Self Storage facility. Alcohol Sales As expected in a lounge/nightclub, the business owner proposes on-site sales of beer, wine, and distilled spirits. This proposal requires an Alcoholic Beverage Control (ABC) Type 47 license. With this type of license alcoholic beverages may be sold to patrons without the consumption of prepared foods or meals. The applicant would be required to obtain all State licenses and permits before offering alcohol for sale as well as submit a security plan to the Police Department for approval. While the consumption of alcohol is a part of community life, it is important to manage alcohol availability in the City in a positive way that enhances the economic and social character of our City. As this particular area continues to develop, its success will likely include new restaurants and entertaining facilities, many of which will sell alcoholic beverages and will hopefully become an asset to the City. While this shopping center has only one other business (Firestone) in operation, the proposed use is located adjacent to another shopping center where a full service restaurant serving alcoholic beverages and a pizza restaurant serving beer and wine already exist. If Lone Tree Crossings was completely leased, one might consider that, rather than be complimentary to the other uses, it would increase the availability and visibility of the number of alcohol establishments located within and adjacent to this center in a manner that is not consistent with the desired development of the center. Based upon a concern raised by the Police Department that no food would be available to the patrons, the applicant has proposed that food will be catered in on a nightly basis and patrons can order from a bar menu. The applicant will need to submit to the County Health Department, for review and approval, the plans showing how the catered food will be prepared and served to the patrons prior to the opening of the club. The Police Department had indicated that if this proposed project had been a full service facility, including entertainment, unique food and beverage service accessible to all segments of the population, their concerns would not be as great because patrons would not be visiting this lounge/nightclub for the sole purpose of drinking but enjoying a full meal as well. Another concern raised by the Police Department is the hours of operation. The applicant is proposing to open the lounge/nightclub at 8:00 p.m. and close it at 2:00 a.m. with a last call for alcoholic beverages at 1:00 a.m. The Police Department is concerned with having two establishments (Red Rhino being the other), so close to each other with both serving alcohol 4

and closing at the same time. As a result, staff is recommending that this proposed lounge/nightclub close at midnight with a last call for alcoholic beverages at 11:00 p.m., creating a staggered closing schedule with Red Rhino in order to reduce the number of potentially intoxicated persons leaving this area at any one time and to reduce the amount of police resources needed to manage this area, thereby increasing the number of officers available to provide services to other areas of the City. Police and Planning staff believe this strategy of staggering the times that alcohol sales must end and final closing times is an effective method of managing the service needs, and a condition has been added to the project to close at midnight with a last call at 11:00 p.m. Security The applicant has spoken with Lt. Tolero of the Police Department to discuss a security plan for the proposed lounge/nightclub. The following measures were discussed in order to help ensure the safety of employees, patrons and other businesses within this center and the adjacent shopping center: Number of security officers Surveillance cameras Over crowding and waiting to get in lines The Police Department has indicated that with an operation of this size a minimum of five officers would be needed. They wanted to see two officers located at the front entrance to check identification and enforce the dress code, two officers inside to mange crowd control and one officer at the back entrance to prevent anyone from entering the facility through this door. The applicant has stated that a strict casual business attire dress code (at a minimum collared shirts and dress shoes for men and similar attire for women) will be enforced. The intent of Club O is to have a first class entertainment lounge and not cater to patrons wearing baggy pants, baseball caps and cut-off shorts. While staff agrees that this is appropriate, the dress code requirement should be more specific by calling out types or styles of clothing that will not be allowed inside the facility, such as but not limited to, baggy shirts, pants or jeans, baggy athletic jerseys, hats or caps of any kind worn backwards or sideways, beanies, bandanas, sleeveless shirts (males), tank tops (males), plain white T-shirts, shirts with obscene writing or graphics, flip flop sandals, ripped, torn or dirty sneakers, shoes or clothing. Staff would like to see this list posted both on the inside and on the outside of the entrance to the lounge to help eliminate any confusion, for the patrons or security officers, as to what is acceptable attire. Staff has included a condition of approval to install surveillance cameras inside and outside so in the event the Police do respond to the club they would have the ability to look at the recordings to help determine who might have been involved. Staff has also included a condition to install Hot Spot antennas giving the responding officer the opportunity to assess any situation within the building once they get on-site. Another concern expressed by both Police and Planning staff is overcrowding and how it would be handled. Overcrowding is typically not a concern when dealing with a small to medium scale nightclub however there is a bigger concern when dealing with a large scale nightclub. Large scale nightclubs need to have patrons in order to operate and typically hold special events such as dance contest or radio promotion events to generate interest and attract people to the nightclub. With Club O being 5,000 sq. ft. in size and having an occupancy capacity of almost 300 people there may be a desire to stage such events. In order to help with potential 5

overcrowding and reduce the amount of police resources needed to manage this area, several conditions restricting third party promoters, advertising or promoting of disc jockeys and dance contest, prize giveaways, or awards were added to the conditions of approval. As part of the overall security plan the applicant would be conditioned to work with the Police Department to develop a plan on how the applicant would deal with any overcrowding within the building and what to do about any long lines that may develop on the outside of the building. Noise The building in which the proposed lounge/nightclub would be located is approximately 350 feet from the closest residence (across the Union Pacific Railroad tracks), with the entire activity proposed to take place within the building. Based on the proposed operation and conditions of approval, staff does not anticipate any adverse noise impacts upon the surrounding area. If there becomes a concern regarding noise, a condition has been added to allow for review of the permit by the Community Development Department or, if needed, return to the Planning Commission for additional conditions or even revocation of the permit. Parking The parking for Lone Tree Crossings was originally constructed per Chapter 17.620 of the Brentwood Municipal Code, using a ratio of one space per 200-square-feet of gross building floor area, for a total requirement of 586 spaces. There are 586 parking spaces immediately available on-site to serve the 117,368-square-feet of space, complying with the required ratio. Restaurants, bars, and nightclubs fall under the umbrella category of 17.620.012.J.1 in the Municipal Code, requiring one parking space per 100-square-feet of gross floor area plus one parking space per 50-square-feet of dancing or assembly area. The proposed site has a gross floor area of 5,000-square-feet and 700-square feet of dance floor area, requiring 50 parking spaces for the gross floor area and 14 parking spaces for the dance floor area for a total parking requirement of 64 spaces. There will be sufficient parking for the proposed use with no impacts upon the parking availability for other tenants because this is a shopping center that has been designed and parked for 117,368 sq. ft. of retail/commercial space and the fact that there are currently only two of the nine buildings constructed on-site. If parking becomes a concern in the future, a condition has been added to allow for review of the permit by the Community Development Department or, if needed, return to the Planning Commission for additional conditions or even revocation of the permit. Signage None is proposed as part of this application; however, signage would need to be consistent with the approved master sign program for Lone Tree Crossings, and would be submitted to the Community Development Department for review and permitting prior to installation. 6

ENVIRONMENTAL DETERMINATION: The environmental effects of this proposed commercial development have previously been analyzed in a mitigated negative declaration (MND) that was prepared and certified by the Planning Commission for this project. The MND found that all potential impacts could be mitigated to less than significant levels and was prepared in a manner consistent with the requirements of the California Environmental Quality Act. As a result, no further environmental review is necessary. RECOMMENDATION: The recommended conditions of approval contain a number of operational requirements, and adherence to those conditions will enable the City to address potential nuisances which may arise in the future. As a result, the proposed lounge/nightclub would not be detrimental to the other businesses in the vicinity or to the proximate residential neighborhoods. Staff recommends that the Planning Commission adopt Resolution No. 09-039 approving CUP 09-09 as conditioned. ATTACHMENTS: 1. Resolution No. 09-039 2. Aerial photo of site and surrounding area 3. Lone Tree Crossings Site Map, dated Received May 1, 2009 4. Written narrative and project plans from Tiffany Tran, dated Received May 1, 2009 7

PLANNING COMMISSION RESOLUTION NO. 09-039 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF BRENTWOOD APPROVING A CONDITIONAL USE PERMIT (CUP NO. 09-09) TO ALLOW THE OPERATION OF A 5,000-SQUARE-FOOT LOUNGE/NIGHTCLUB KNOWN AS CLUB O, LOCATED AT 6830 LONE TREE WAY (APN 019-010-064). WHEREAS, the Planning Commission of the City of Brentwood has considered Conditional Use Permit No. 09-09 to allow the operation of a 5,000-square-foot lounge/nightclub known as Club O, located at 6830 Lone Tree Way; and WHEREAS, the Lone Tree Crossings project (MS 365-05/CUP 05-30) was originally approved by the Planning Commission on May 16, 2006, by Resolution No. 06-36; and WHEREAS, the Planning Commission previously approved DR 05-29 for the project site to allow the construction of a 117,368 sq. ft. commercial retail center on June 6, 2006 by Resolution No. 06-35; and WHEREAS, a Notice of Public Hearing was distributed to all property owners of record within 300 feet of the project site and published in the Brentwood Press on July 10, 2009, in accordance with City policies and Government Code Section 65090; and WHEREAS, the project is consistent with a previously prepared and approved mitigated negative declaration for Lone Tree Crossings in accordance with the California Environmental Quality Act (CEQA), such that no additional environmental review is necessary; and WHEREAS, the Planning Commission of the City of Brentwood has held a public hearing, reviewed said conditional use permit request, and has studied the compatibility of this request with adjacent land uses, and has considered this request in accordance with the conditional use permit criteria established in 17.830.005 of the Brentwood Municipal Code. NOW, THEREFORE, BE IT RESOLVED that the Planning Commission of the City of Brentwood: A. Hereby finds that: 1. The harmony in scale, bulk, coverage and density of the proposed project is consistent with and compatible to the existing and proposed land uses around the subject site, in that the proposed Club O will be located primarily within an existing building, with no additions or expansions to the existing exterior, thereby maintaining the approved scale, bulk, coverage and density of the building. 2. The availability of public facilities and utilities is adequate to serve the proposed use, in that Club O will be located within a building where public facilities and services are currently provided, including sewer, water, electricity, and phone. 3. There will be no harmful effect upon the desirable neighborhood character with approval of this permit due to the proposed location of the business within an existing commercial building, with no exterior additions proposed 1

and a major thoroughfare (Lone Tree Way), existing self storage facility and the Union Pacific Railroad tracks separating the site from the nearest residential properties located to the south and east, as well as conditions of approval related to daily operations and security. 4. The subject site will have adequate pedestrian and vehicular circulation and parking available via the main driveway off Lone Tree Way, centrally located on the site, one secondary access via the Fairview Avenue extension located on the east side of the property and a third access via a drive aisle from the Lone Tree Center development to the west. Finally, adequate on-site parking is available based on the original approval for the Lone Tree Crossing project, and any additional parking required by Club O will be negligible because there is only one other existing building located within the center that was approved for a total of nine buildings. 5. The generation of any additional traffic will be accommodated, given the fact that the Lone Tree Crossings project was designed for vehicle use. In addition, the capacity of the surrounding streets is adequate to accommodate any increase in use, given the fact that Lone Tree Way is a major east-west thoroughfare and is able to handle expanding traffic needs. 6. The location, design, landscaping and screening, and overall site planning of the proposed Club O are appropriate, given that the business will be located in an existing commercial center that provides an attractive, useful and convenient working and community-service area. In addition, the project has been landscaped in accordance with the original approval of the center and is located close to public transportation and arterial streets. B. Hereby approves Conditional Use Permit No. 09-09, subject to the conditions of approval listed in Exhibit "A", attached hereto and made a part of this resolution, and all City standards applicable to this project. This permit shall terminate on July 21, 2010, unless actual development or operations have begun within said period. However, such period of time may be extended by the Planning Commission upon application filed at any time before said period has expired. The above action is final unless an appeal is filed pursuant to Chapter 17.880 of the Brentwood Municipal Code within ten (10) calendar days following Planning Commission action. ADOPTED by the Planning Commission of the City of Brentwood at its regular meeting on August 4, 2009 by the following vote: AYES: NOES: ABSENT: ABSTAIN: 2

APPROVED: Joseph Weber Planning Commission Chairman ATTEST: Casey McCann Community Development Director 3

EXHIBIT "A" TO PLANNING COMMISSION RESOLUTION NO. 09-039 CONDITIONS OF APPROVAL FOR CONDITIONAL USE PERMIT NO. 09-09 1. The project shall be established and continuously operated in substantial conformance with the written narrative and other project submittals dated Received, May 1, 2009 unless otherwise amended by the conditions of approval contained herein. Minor changes to the plans and operation may be allowed subject to the approval of the Community Development Director if found to be in substantial conformance with the approved exhibits. 2. This use is required to comply with these conditions of approval as long as the use is in operation at the approved site. As such, the site shall be available for periodic reinspections, conducted at the discretion of City officials, to verify compliance. 3. The applicant shall obtain all required permits and licenses from the California Department of Alcoholic Beverage Control and the Contra Costa County Health Department prior to commencement of the use and maintain said permits at all times while the use is operating. Copies of all permits and licenses shall be submitted to the Community Development Department prior to commencement of the use. 4. On-site signage shall be allowed in accordance with the standards of the approved master sign program for Lone Tree Crossing, and shall be submitted to the Community Development Department prior to installation for review and permitting. 5. No temporary or portable signs shall be allowed except for temporary banner signs in accordance with the Brentwood Municipal Code. 6. The applicant shall maintain the area surrounding the use including but not limited to the trash enclosure area, sidewalk, and parking lot area in a clean and orderly manner at all times. 7. The public hours of operation shall be from 8:00 p.m. to 12:00 a.m. Thursday through Sunday with Last call for alcohol at 11:00 p.m. Private functions, such as but not limited to, family reunions, weddings, anniversary parties, company parties, etc., can be scheduled during the hours the club is not open to the public. If a private function is scheduled during the hours the club is open to the public, the club shall be closed to the general public. Private functions shall also close at 12:00 a.m. 8. In the event that the applicant proposes to modify the hours of operation beyond 8:00 p.m. to 12:00 am hours of operation or other aspects of the business or modify the exterior of the building or site, the modification shall be subject to the review of the Community Development Director. The Community Development Director may approve the modification or refer the matter back to the Planning Commission if judged to be substantial. 9. All music and dancing-related activities shall be conducted indoors at all times. Doors shall remain closed while music is being played. Entertainment shall be limited to disc jockeys assisted music only and no live bands shall be allowed. 4

10. The applicant shall be prohibited from renting or leasing the facility to a third party promoter who would use the facility to hold or stage an event, such as but not limited to, dance contests, special theme nights, radio events, prize giveaways or prizes. 11. The applicant shall be prohibited from advertising or promoting the different disc jockeys that would be performing at the nightclub. 12. The applicant shall be prohibited from having or staging any special contests associated with or held at the nightclub, such as but not limited to, dance contests, special theme nights, radio events, prize giveaways, or awards. 13. The total number of patrons permitted on the premises shall be determined by the Chief Building Official and the Fire Official and based upon the occupancy limits established by the CBC and the Fire District code. 14. Prior to commencement of the use, the applicant shall submit a plan for recycling services to the Public Works Department (Solid Waste Division) for review and approval. 15. The applicant shall submit a detailed security plan to the Police Department for review and approval prior to commencement of the use. A copy of the approved plan shall be submitted to the Community Development Department and maintained on file. 16. Prior to commencement of the use, the applicant shall obtain and receive final approval of all required building permits, to the satisfaction of the Chief Building Official. 17. The sale of beer, wine and distilled spirits shall be for on-site consumption only. 18. The applicant shall post a sign at each exit advising patrons that No Alcoholic Beverages May Leave the Premises. 19. The conviction for a violation of California Penal Code provisions, which prohibits the sale of alcohol to minors, shall be grounds for revocation of the conditional use permit for on-sale alcohol. 20. Any noise resulting from the operation of Club O or the conduct of the patrons, such as but not limited to playing of music shall be kept at a level so as not to cause any disturbances or nuisances which would be detrimental to other property in the area or to the welfare of the occupants thereof. In addition to noise, in the event that any verified complaints of vibrations from amplified music at the premises are made to the City, the applicant shall immediately meet with City staff to discuss mitigation measures. Should such measures fail to alleviate the problem, then the matter may be treated as a nuisance warranting the initiation of revocation proceedings. 21. The applicant shall install and maintain an indoor/outdoor digital video surveillance and recording system and Hot Spot antennas including the necessary easements to access and maintain these sites to the satisfaction of the Brentwood Chief of Police or designee. The system shall store digital copies of all recordings for sixty days from the date of recording. The recordings shall be made available to the Brentwood Police Department upon demand pursuant to a criminal investigation. Surveillance video must cover all entrances and exits into and out of the business. 5

22. The applicant shall make sure that the anti-loitering signs are posted and visible at all times. 23. There shall be no gambling or gambling type video devices on the premises. 24. The owner or manger of the business is responsible for immediately notifying the Police Department of disturbances or crimes occurring at the business, including but not limited to, the business interior and parking lot areas associated with the center. 25. If operation of this use results in conflicts pertaining to parking, noise, traffic, loitering, public safety, Police Department services, or other impacts, at the discretion of the Community Development Director, this conditional use permit may be referred to the Planning Commission for subsequent review at a public hearing. If necessary, the Commission may modify or add conditions of approval to mitigate such impacts, or may revoke said conditional use permit bound upon applicable findings. 6

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