CITY OF CARMEL-BY-THE-SEA

Planning Commission Report

April 12, 2017

To: Chair Goodhue and Planning Commissioners

From: Marc Wiener, AICP, Community Planning and Building Director

Subject: Consideration of a Live Music Permit (UP 14-17) application for Affina
Bistro restaurant. The site is located in the Central Commercial (CC)
Zoning District.

Application: UP 14-17 (Affina) APN: 010-134-011

Location: Southwest corner of 6th and San Carlos
Block: 71 Lots: 1
Applicant: Nicolas Izard Property Owner: Leidig-Draper Properties

Executive Summary: The owner of Affina Bistro are requesting approval to play live music from
the restaurant consisting of non-amplified piano and guitar. The restaurant owner has
previously operated in violation of their use permit, and as such, the Planning Commission
conducted a compliance review of the restaurant on August 10, 2016. There have been no
issues with the restaurant since the compliance review.

Recommendation:

Approve the Use Permit (UP 14-17) application to allow live music subject to the attached
findings and conditions.

Background and Project Description:

The project site is a 1,500-square foot commercial space located at the southwest corner of San
Carlos Street and 6th Avenue in the Central Commercial (CC) Zoning District. On January 23,
2014, the Planning Commission approved a Use Permit (UP 13-20) application authorizing the
use of a full-line restaurant at the subject location. The approved hours of operation are from
11:00 a.m. to 11:00 p.m., seven days per week; and no new customers to be accepted into the
restaurant after 10:00 p.m.

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UP 14-17 (Affina)
April 12, 2017
Staff Report
Page 2

On August 10, 2016, the Planning Commission considered an application (UP 14-17) for live
music and conducted a compliance review of the restaurant. The City had received numerous
complaints about noise associated with the playing of live music and with the restaurant being
open past the allowed hours of operation. The Planning Commission put the business owner
on notice that the City may revoke the restaurant use permit if the violations continue. The live
music application was continued for a period of at least 6 months, during which time the owner
was required to demonstrate compliance with the restaurant use permit. It has been
approximately 8 months since the Planning Commission made this decision, and the City has
not noted any violations of the use permit or received any complaints.

The applicant is requesting approval of a Use Permit to allow live music to be played from
within the building. The applicant has indicated that the music would primarily consist of non-
amplified piano and occasional acoustic guitar. The floor plan indicates that the piano would be
located at the northwest corner of the building, adjacent to the main entry door. The location
of the piano is depicted on the floorplan included as Attachment D.

Staff analysis:

Noise Sensitive Use and Evaluation

The majority of the near-by uses are commercial; however, there are some apartments within
the 200-foot perimeter. Staff notes that the allowed noise limit for live music is 55 decibels
(dBA) as measured at the property line boundaries (CMC Section 9.16.035). Noise impacts
should be minimal with the proposed type of music, which includes non-amplified piano and
guitar, likely with occasional vocal accompaniment. The Planning Commission may consider
whether having the piano located so close to the entry door could increase the potential for
noise issues.

Enforcement
With regard to enforcement of noise levels, staff notes that pursuant to CMC Section
9.16.030.B.3, any three violations within any 12-month period shall require revocation of the
use permit by the Planning Commission. A condition has been drafted consistent with this
requirement.

Hours of Operation
The City's Municipal Code (CMC 9.16.030B4) restricts live music between the hours of 12:00
p.m. and 10:00 p.m. and states that the Planning Commission may establish fewer hours to

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UP 14-17 (Affina)
April 12, 2017
Staff Report
Page 3

address specific circumstances unique to each site and permit. The business is required to
close at 11:00 p.m. and cannot accept new customers after 10:00 p.m. A condition has been
drafted permitting live music between the hours of 11:00 a.m. to 10:00 p.m. daily. The
Commission could require that the live music end earlier if it has concerns with potential
impacts to surrounding properties, or that it only be allowed certain days of the week.

Environmental Review: The application qualifies for a Class 1 Categorical Exemption from the
provisions of the California Environmental Quality Act (CEQA) pursuant to Section 15301 of the
State CEQA Guidelines. Class 1 exemptions include projects involving minor expansions of uses
within existing structures. A Noise Management Plan was prepared with measures to avoid
significant noise impacts. The proposal for live music does not present any other unusual
circumstances that would result in a potentially significant environmental impact.

ATTACHMENTS:

Attachment A Findings for Approval

Attachment B Conditions of Approval
Attachment C Project Description
Attachment D Floor Plan

132
Attachment A - Findings

CITY OF CARMEL-BY-THE-SEA

DEPARTMENT OF COMMUNITY PLANNING AND BUILDING

FINDINGS FOR APPROVAL

UP 14-17
Nicolas Izard (Affina)
Southwest corner of 6th and San Carlos
Block: 71, Lot: 1
APN: 010-134-011

CONSIDERATION:

Consideration of Use Permit (UP 14-17) application to allow live music from the commercial
building (Affina) located on the southwest corner of 6th and San Carlos.

FINDINGS OF FACT:

1. The project site is located on a 1,500-square foot property located on the southwest corner of
6th and Ocean, in the Central Commercial (CC) Zoning District.

2. On January 23, 2014, the Planning Commission approved a Use Permit (UP 13-20) application
for the subject property to allowing the building to operate as a full-line restaurant (Affina).

3. The applicant, Nicolas Izard, submitted a Use Permit (UP 14-17) application to allow live music
as provided in the application materials on September 19, 2014.

4. A public hearing for the living music permit was postponed because the restaurant was not
operating in compliance with its use permit. On August 10, 2016, the Planning Commission
considered an application (UP 14-17) for live music and conducted a compliance review of the
restaurant. The live music application was continued for a period of at least 6 months, during
which time the restaurant owners were required to demonstrate compliance with the use
permit. It has been approximately 8 months since the Planning Commission made this
decision, and the City has not noted any violations of the use permit or received any
complaints.

5. Carmel Municipal Code Section 9.16 establishes the standards for live music where alcoholic
beverages are sold or served. The use permit is being issued under the Citys Live Music
Ordinance (CMC 9.16), which was adopted by the City Council on July 2, 2013.

6. The application qualifies for a Class 1 Categorical Exemption from the provisions of the
California Environmental Quality Act (CEQA) pursuant to Section 15301 of the State CEQA

133
UP 14-17 (Affina)
April 12, 2017
Findings for Approval
Page 2

Guidelines. Class 1 exemptions include projects involving minor expansions of uses within
existing structures. A Noise Management Plan was prepared with measures to avoid
significant noise impacts. The proposal for live music does not present any other unusual
circumstances that would result in a potentially significant environmental impact

FINDINGS FOR DECISION:

1. The proposed use is not in conflict with the General Plan.

2. The proposed use, as conditioned, will comply with all zoning standards applicable to the
use and zoning district.

3. The granting of the Use Permit will not set a precedent for the approval of similar uses
whose incremental effect will be detrimental to the City, or will be in conflict with the
General Plan.

4. The proposed use will not make excessive demands on the provision of public services,
including water supply, sewer capacity, energy supply, communication facilities, police
protection, street capacity and fire protection.

5. The proposed use will not be injurious to public health, safety or welfare and provides
adequate ingress and egress.

6. The proposed use will be compatible with surrounding land uses and will not conflict with
the purpose established for the district within which it will be located.

7. The proposed use will not generate adverse impacts affecting health, safety, or welfare of
neighboring properties or uses.

8. The proposed use will contribute to a balanced mix of uses in the downtown.

134
Attachment B - Conditions of Approval

CITY OF CARMEL-BY-THE-SEA

DEPARTMENT OF COMMUNITY PLANNING AND BUILDING

CONDITIONS OF APPROVAL

UP 14-17
Nicolas Izard (Affina)
Southwest corner of 6th and San Carlos
Block: 71, Lot: 1
APN: 010-134-011

AUTHORIZATION:

1. This Use Permit authorizes live music to be played from within the Affina Restaurant. Live
music shall primarily consist non-amplified piano and guitar. With this authorization, live music
shall be ancillary to the primary use of a restaurant.

2. Live music is permitted to be played between the hours of 12:00 p.m. to 10:00 p.m., seven
days per week.

3. Pursuant to Municipal Code Chapter 9.16, the maximum noise level allowed from live music
activities located on the property shall not exceed 55 dBA as measured at any of the property
lines.

SPECIAL CONDITIONS:

4. Any three violations within any 12-month period shall require revocation of the Use Permit by
the Planning Commission.

5. A summary sheet of basic Use Permit requirements (allowed days, allowed hours, special
mitigations) shall be posted on the premises and shall be available upon request by any
enforcement officer of the City.

6. This Use Permit shall become void and of no further force or effect if the use is not initiated
within six months and/or upon termination or discontinuance of the use for any period of time
exceeding six months.

7. Violations of the terms of this Use Permit or other ordinances of the City may constitute
grounds for revocation of this Use Permit and the associated business license by the Planning
Commission.

135
UP 14-17 (Affina)
April 12, 2017
Conditions of Approval
Page 2

8. Upon termination or revocation of this use permit and/or business license for any reason, the
use shall immediately cease and shall not be re-established without issuance of a new use
permit.

9. The applicant agrees, at its sole expense, to defend, indemnify, and hold harmless the City, its
public officials, officers, employees, and assigns, from any liability; and shall reimburse the City
for any expense incurred, resulting from, or in connection with any project approvals. This
includes any appeal, claim, suit, or other legal proceeding, to attack, set aside, void, or annul
any project approval. The City shall promptly notify the applicant of any legal proceeding, and
shall cooperate fully in the defense. The City may, at its sole discretion, participate in any such
legal action, but participation shall not relieve the applicant of any obligation under this
condition. Should any party bring any legal action in connection with this project, the Superior
Court of the County of Monterey, California, shall be the situs and have jurisdiction for the
resolution of all such actions by the parties hereto.

*Acknowledgement and acceptance of conditions of approval.

________________________________ ______________________ ___________

Applicant Signature Printed Name Date

________________________________ ______________________ ___________

Property Owner Signature Printed Name Date

Once signed, please return to the Community Planning and Building Department.

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Attachment C - Project Description

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FOOD I WINE

April 2, 2017

Planning D~rector: Marc Wiener,

As requested, you have asked Affina to describe what type of music we are going to have at Affina. Our
goa' determination is to keep within the guidelines of what is permitted for approval in the next
planning commission meeting. The music that we will be playing wiU not consist of any horns or
percussions but it will be, a focused on piano and from time to time guitar (no amplification). We ask
that we will also be allowed on occasion to have a singer perform.

Sincerely~

Ni
RECEIVED

APR 0 4 2017
City of Canncl-oy-the-Sea
Planning & B:.:i!di!lg Dept.

137
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