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HomeMy WebLinkAboutCUP 96-15 Staff Report CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT PLANNING COMMISION STAFF REPORT REQUEST: Consideration of an amendment to an approved Conditional Use Permit to eliminate nightly music entertainment in the outdoor dining patio area of the Augusta's Restaurant (Augusta's). Subject property is located at 73-995 El Paseo (APN: 627-272-005). SUBMITTED BY: Ryan Stendell Associate Planner CASE NO: CUP 96-15 DATE: January 15, 2008 EXECUTIVE SUMMARY: Approval of the staff recommendation would modify the existing Conditional Use Permit (CUP) eliminating approvals for outdoor music. II. DISCUSSION: At its meeting of December 18, 2007 the Planning Commission continued this item at the request of staff. Augusta's had retained a sound consultant and staff agreed to monitor the noise over the next few weeks in order to try and reach compliance. Staff identified both December 20th and 22nd as dates on which noise monitoring would occur. Staff also internally discussed a third reading to occur closer to the January 15th, 2008 hearing. Results of the latest sound readings will be given at the hearing. December 20, 2007: Planning Staff and Code Enforcement Staff arrived at Augusta's at around 8:30 pm. Staff was invited in and introduced to the sound consultant at which time all of the mitigation measures that were being proposed were shown. In addition to mattresses that had been used for sound attenuation, the consultant placed sound mitigation cloth and panels in and around the stage area where the band plays. The Thursday night band is comprised of three musicians with synthesized background music. A Code Enforcement Officer began with several ten minute sound readings and a one hour A-weighted reading at 9:00 pm (see below). V Staff Report CUP 96-15 January 15, 2008 Page 2 of 4 Augustas 12/20/07 ■tow ■High ■Avg 76 70.3 68.8 61.2 II 51.32 51.91 53.33 53.16 42.7 II 42.4 I 41.6 I 41.9 Decibels 8:35 PM 8:42 PM 9:45 PM 8:35 PM 10 Minutes 10 Minutes 10 Minutes 60 Minutes At the time when the sound measurements began, Code Enforcement Manager Hart Ponder, Code Officer Shawn Kilpatrick and I began a series of spot checks at several of the reporting parties' addresses to determine whether staff agreed that the complaints were reasonable. Staff has identified the locations (see map attached) and results below: 74-000 Candlewood Street (Candlewood Apartments): The three staff members in attendance could clearly hear the music at this location at around 9:00 pm. 73-922 Shadow Mountain Drive: The three staff members in attendance were clearly able to hear the music at this location at around 9:15 pm. 45-831 Mountain View: The three staff members were able to hear the band playing at this location; the time was 9:30 pm. G:\Planning\Ryan Stendell\Word Data\CUP_96-15_PC-RPT-I.doc Staff Report CUP 96-15 January 15, 2008 Page 3 of 4 Shadow Mountain Resort and Tennis Club: All three members were able to faintly hear the music from this location; the time was 9:45 pm. December 22, 2007: Code Officer Shawn Kilpatrick began sound readings on this night at 10:38 pm and took several ten minute readings and a one hour reading. The Saturday night band is comprised of five musicians. I arrived at approximately 10:45 pm and noted immediately that the music was noticeably louder than Thursday night. The four ten minute readings averaged 58.28 decibels (see graph below) and the one hour reading showed an average of 58.31. Code Enforcement Manager Hart Ponder and I again traveled to various locations and concurred again that the reporting parties' complaints have merit. 79.8 79.4 80 -" 15.4 71.6 70 -" :.9 .22 GO "11111 -1111 7 e 50 -` 1IleIle ■Low 40 II Ill Il ®High 30 II II II ■Average 20 III Ill Ill 10 I ■ ■ 0 I 1 2 3 4 IV. CONCLUSION: Staff has observed Augusta's three times in the month of December 2007 (12/15, 12/20, 12/22) and have found the business to be out of compliance two out of three visits. The December 20`h results which were in compliance with the approved CUP can be attributed to the nature of the band (three members rather than five) that was playing that evening. Staff is anticipating one more sound measurement before the next public hearing (results to follow). Observations by three separate staff members are that even at the lowest readings (12/20/2007), amplified music should not be permitted in this proximity G:\Planning\Ryan Stendell\Word Data\CUP_96-15_PC-RPT-1.doc Staff Report CUP 96-15 January 15, 2008 Page 4 of 4 I to residential areas. It is difficult to conduct a meaningful sound study simply by measuring decibels. A CUP is intended to assure that conditionally permitted use is compatible with surrounding uses and does not create a public nuisance. Unfortunately in this case, staff feels that the outdoor patio music is creating a nuisance for surrounding residents even at the lowest decibel readings (51.32 db) that were recorded, and therefore recommends that the Planning Commission modify the existing CUP to eliminate any outdoor music. Staff would consider a new application if Augusta's can demonstrate they have constructed such improvements as to not create a public nuisance to the surrounding neighborhood. V. ENVIRONMENTAL REVIEW: For the purposes of CEQA, the Director of Community Development has determined that the Conditional Use Permit is a Class 3, Categorical Exemption, and no further review is necessary. VI. ATTACHMENTS: Aerial/Site Map Code Compliance Memo dated December 17, 2007 Code Compliance Memo dated December 21 , 2007 Email from Shawn Kilpatrick, Code Officer dated December 24, 2007 Submitted By: Department Head: Ryan Stendell auri Aylaian Associate Planner Director, Community Development Approval: / --( Homer Croy ACM, Develop Services G Planning'.Ryan Stendell,Word Data\CUP_96-I5_PC-RPT-I.doc PLANNING COMMISSION RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING A REQUEST TO AMEND THE EXISTING CONDITIONAL USE PERMIT TO ELIMINATE NIGHTLY AMPLIFIED MUSIC IN THE OUTDOOR DINNING PATIO AREA OF AUGUSTA RESTAURANT LOCATED AT 73-995 EL PASEO DRIVE. CASE NO. CUP 96-15 Amendment No. 3 (Modified) WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 4th day of December, 2007, which was continued to December 18th, and January 15th, 2008, hold a duly noticed public hearing to consider the above mentioned use; and WHEREAS, said application has complied with the requirements of the "City of Palm Desert Procedure for Implementation of the California Environmental Quality Act, Resolution No. 06-78," in that the Director of Community Development has determined that the project is a Class 3 Categorical Exemption for purposes of CEQA and no further documentation is necessary; and WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if any, of all interested persons desiring to be heard, said Planning Commission did find the following facts and reasons to exist to justify the granting of said amendment to the conditional use permit: 1 . That the City has documented on December 11 , 2004 (11:00 pm @ 62 db), March 11 , 2005 (10:55 pm @ 62.27 db), November 2, 2007 (10:32 pm @ 59.67 db), December 15, 2007 (10:36 pm @ 57.93 db) and December 22, 2007 (11:19 pm @ 60.22 db) that by allowing amplified music to be played at levels not permissible by the approved Conditional Use Permit or the City's noise ordinance Augusta's Restaurant has failed to comply with applicable provisions of the Palm Desert Municipal Code. 2. That on December 11 , 2004 (11 :00 pm @ 62 db), March 11 , 2005 (10:55 pm @ 62.27 db), November 2, 2007 (10:32 pm @ 59.67 db), December 15, 2007 (10:36 pm @ 57.93 db) and December 22, 2007 (11:19 pm @ 60.22 db) Augusta's Restaurant has failed to comply with condition number three imposed by Conditional Use Permit 96-15 Amendment No. 3 as it relates to outdoor music being played until 11:30 pm subject to the City's approved Noise Ordinance (Chapter 9.24 of Palm Desert Municipal Code); and 3. That based on numerous noise complaints from more than ten surrounding residents and Code Enforcement/Planning staff observation is that, Augusta's Restaurant has by playing amplified music in close proximity to nearby residential properties created a public nuisance in violation of the Palm Desert Municipal Code and the approved Conditional Use Permit, specifically condition number three of Conditional Use Permit 96-15 Amendment No. 3 as it relates to outdoor music being played until 11 :30 pm subject to the City's approved Noise Ordinance (Chapter 9.24 of Palm Desert Municipal Code). PLANNING COMMISSION RESOLUTION NO. NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of Palm Desert, California, as follows: 1. That the above recitations are true and correct and constitute the findings of the commission in this case. 2. That approval of Conditional Use Permit 96-15 Amendment No. 3 (Modified) is hereby granted, subject to the attached conditions. PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert Planning Commission, held on this 15th day of January, 2008, by the following vote, to wit: I AYES: NOES: ABSENT: ABSTAIN: SONIA CAMPBELL, Chairman ATTEST: LAURI AYLAIAN, Secretary Palm Desert Planning Commission 2 PLANNING COMMISSION RESOLUTION NO. CONDITIONS OF APPROVAL CASE NO. CUP 96-15 Amendment No. 3 (Modified) Department of Community Development: 1 . The development of the property shall conform substantially with exhibits on file with the Department of Community Development, as modified by the following conditions. 2. The development of the property described herein shall be subject to the restrictions and limitations set forth herein which are in addition to all municipal ordinances and state and federal statutes now in force, or which hereafter may be in force. • including but not limited to the following: Time: Applicable 1 hour average sound level decibels measured at the property line. 7:00 a.m. to 10:00 p.m. 65 decibels 10:00 p.m. to 7:00 a.m. 55 decibels /1. The outdoor music location shall be limited to the outdoor dining area, immediately adjacent to the restaurant south elevation as illustrated on Exhibit "A". with the adjacent properties. 3 ; �. CITYOF PALM DESEP� 4 a ' ,; . PU r_-ANNING DEPARTME _L -,2, A --tt/4.,,,Ti , . ri INTEROFFICE MEM©RANDU e o: Hart Ponder Jr., Code Compliance Manager From: Johnny Terfehr, Code Compliance Officer Date: December 17, 2007 Subject: Augusta's Night-Time Sound Levels , On Saturday December 15, 2007 I performed sound measurements at Augusta's Restaurant. Three measurements were taken, all from the nearest residential property line (same location as was done previously). The first measurement started at 10:10 PM and continued for ten minutes. The average A weighted sound level was 53.33 decibels. The band was not playing during this ten minute period. The second measurement started at 10:36 PM and was for ten minutes. The average A weighted sound level was 57.93 decibels. The band played the entire ten minute time period. The allowable decibel level for this period (after 10:00 PM) is 55. The third measurement started at 10:36 PM (2nd sound meter) and was for one hour. The band played for all but the last three minutes of the one hour period. The average A weighted sound level was 57.42 decibels. The conditional use permit requires that sound levels be below 65 decibels before 10:00 PM and below 55 decibels after 10:00 PM. The average A weighted sound level after 10:00 PM was 57.42 decibels. Attached are ch rts showing the pertinent sound level measurements. oh y Terfehr de Compliance Officer r !NY .. N 0 t—B h Ln C vri W . i 3 y 7:5 LO s iri ' DO L 0 Q L. 0 N 0 in t 4 N I 1 (Jr, .7, w a m 4/1 GJ 4-0 ir U E a, s bi3 CU -CrN 0 • °r Q C a, ev c� a� bo _- co 0. cc) M u1 ". 0 U in E imin 3 a 44 a. 0 CI) N n O oo O T 1 II) O 4-6 E c a . in IA ' N Cr '-1 I CO In ttO • a Pc, cu i CITY OF PALM DESERT 4) PLANNING DEPARTMENT • „t k 4 f INTEROFFICE MEMORANDUM ••. 2973 •.• To: Hart Ponder Jr., Code Compliance Manager From: Johnny Terfehr, Code Compliance Officer Date: December 21, 2007 Subject: Augusta's Night-Time Sound Levels On Thursday December 20, 2007 I performed sound measurements at Augusta's Restaurant. Four measurements were taken, all from the nearest residential property line (same location as was done previously). The first measurement started at 8:35 PM and continued for ten minutes. The average A weighted sound level was 51.32 decibels. The band was playing during this ten minute period. The second measurement started at 8:42 PM and was for ten minutes. The average A weighted sound level was 51.91 decibels. The band was playing during this ten minute period. The third measurement started at 9:45 PM and was for ten minutes. The average A weighted sound level was 53.33 decibels. The band was playing during this ten minute period. The fourth measurement (done concurrently on a second meter) started at 8:35 PM and was for one hour. The band played for all but the last three minutes of the one hour period. The average A weighted sound level was 53.16 decibels. The conditional use permit requires that sound levels be below 65 decibels before 10:00 PM and below 55 decibels after 10:00 PM. Attached are ch owing the pertinent sound level measurements. Jo erfehr ode Compliance Officer I to N t0 � m 5 W l0 Qt c-I M M U M a c N Ol to O ri \ v O a N N t r-1 O° N N a � N l0 W d' w 00 0_ l0 M W a-i N N w d u a 0 Stendell, Ryan From: Kilpatrick, Shawn Sent: Monday, December 24, 2007 9:10 AM To: Ponder, Hart Cc: Terfehr, Johnny; Armenta, Lorena; Rodriguez, Pedro; Stendell, Ryan; Aylaian, Lauri Subject: Augusta's 07-4111, 73995 El Paseo. Sound Report for December 22, 2007 Hart, As requested, I performed sound metering for the above restaurant/night club on Saturday night, December 22, 2007. I took three ten minute 'A' weighted readings and one one-hour `A' weighted reading. I began 4 measuring sound levels at 10:38 PM and concluded them at 11:37 PM. Readings were taken while music was being played, at or near the property line in a prescribed manner that would produce a fair and accurate representation of the sound levels. Ten Minute Readings: Taken at 10:38 PM, 10:50 PM, 11:08 PM and 11:19 PM in order from 1-4 as indicated on the chart below. _ 79.8 75.4 79,4 SO -1,-- -- _i 71.6 70 ;.9 22 50 'or"- mullie 'I, _ ■Low 40 0 III ■ High " 0 I Aver4lge 2° 0 Ill 10 al III I i One-Hour Reading: Started at 10:38 PM and concluded at 11:38 PM. For the final five minutes of this reading, the band was not playing. 80 80 - 60 1 44.5 __. _. 40 Low Iligh Average 1 The Ono Sokki sound meter utilizes a "Percentile Sound Pressure Level Measurement" method where when the time period in which time-variable sound levels exceed a certain level occupying "X" percent of the actual measurement time, that level is called the percentile sound pressure level (Lx). By measuring the percentile sound pressure level, it becomes possible to evaluate environments in which irregular sound levels or sounds with remarkable variations are involved. The most relevant data collected includes the lowest and highest sound levels that occurred during the test as well as the overall average. During the time frame that the measurements were taken City municipal code 9.24.030 requires that sound levels not exceed 55 decibels for an `A' weighted 10 minute average and 58 decibels for a 'C' weighted ten minute average. If staff can be of further assistance, please let me know. I am available to answer any questions. Shawn M. Kilpatrick Code Compliance Officer City of Palm Desert (760) 346-0611 x.476 Nextel direct connect# 125*27233*11 2