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HomeMy WebLinkAbout1207 MINUTES PALM DESERT PLANNING COMMISSION REGULAR MEETING TUESDAY - DECEMBER 7, 1999 7:00 P.M. - CIVIC CENTER COUNCIL CHAMBER 73-510 FRED WARING DRIVE I. CALL TO ORDER Chairperson Jonathan called the meeting to order at 7:00 p.m. II. PLEDGE OF ALLEGIANCE Commissioner Campbell led in the pledge of allegiance. III. ROLL CALL Members Present: Sabby Jonathan, Chairperson Paul Beaty, Vice Chairperson Sonia Campbell Cindy Finerty Jim Lopez `..• Members Absent: None Staff Present: Steve Smith, Planning Manager Bob Hargreaves, City Attorney Tonya Monroe, Administrative Secretary IV. APPROVAL OF MINUTES: Consideration of the November 16, 1999 meeting minutes Action: It was moved by Commissioner Campbell, seconded by Commissioner Finerty, to approve the November 16, 1999 meeting minutes. Motion carried 5-0. V. SUMMARY OF COUNCIL ACTION: Mr. Smith summarized pertinent November 18, 1999 City Council actions. VI. ORAL COMMUNICATIONS None. MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1999 t ..r VII. CONSENT CALENDAR No items. Vill. PUBLIC HEARINGS Anyone who challenges any hearing matter in court may be limited to raising only those issues he or she or someone else raised at the public hearing described herein, or in written correspondence delivered to the Planning Commission at, or prior to, the public hearing. A. Case No. CUP 99-8 - CAESAR'S EMPEROR, Applicant (Continued from November 2, 1999 and November 16, 1999) Request for approval of a conditional use permit for a 10,000 square foot restaurant and, after 9:00 p.m., a bar, lounge and nightclub with dancing including live music and disc jockeys in the building located at 72-600 Dinah Shore Drive. Mr. Smith noted that this item had been continued from November 2 and 16, 1999. Prior to that the matter had originally been before the commission at their meetings of September 21 and October 5. At the time of the October 5 meeting the matter was effectively left unresolved in that it was left hanging on a 2-2 vote. Upon further reflection, staff felt the matter should have been given one more opportunity at that point to resolve it one way the other, hence staff readvertised the matter for the November 2 hearing and put it back on the agenda as a new item. The commission had the report from November 2, which was substantially similar to the report the commission had previously. The staff recommendation on November 2 and today was that the commission approve the matter, subject to the conditions which were consistent with the preliminary injunction which the City had obtained on the matter. Staff also distributed to the commission, pursuant to the Chairman's request, a copy of City Attorney Phillips' comments on the matter where he outlined possible findings for denial of the application. The staff recommendation was for approval but staff included a resolution of denial in the packet. If that was commission's choice, action could be taken on the matter. He asked for any questions. 2 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1999 Commissioner Campbell asked if this proposal complied with the goals, objectives, and policies of the city's General Plan. Mr. Smith explained that the zoning of the property was consistent with the General Plan and consequently the proposed use, if it obtained a conditional use permit, would be an acceptable use in the zoning. Hence, the use would be deemed to conform. Chairperson Jonathan opened the public hearing and asked the applicant to address the commission. MR. CHARLES KOLLER, 225 S. Civic Drive in Palm Springs, stated that he was the attorney for the applicant. He was present to hopefully change a couple of the commissioners' minds since they last met and to answer any questions. He stated that he was concerned at the last meeting because there were comments made that because of the conditions that were agreed upon between the city staff and his client, and the preliminary injunction, was not awarded by the court--it was stipulated to by the parties. They came to an agreement that this would be sufficient to allow the business to proceed while they discussed this. There was a concern that those conditions, just the conditions themselves, reflected badly on the use that was there. For instance some members took exception to the fact that there were sheriffs there, by agreement. That there were metal detectors that would be in place to insure that there wouldn't be a problem. In the time that they have agreed to comply with the city's requirements on this, they have had zero law enforcement intervention problems at the site. Zero. In contrast during that same period of time, if they were to look at the two other CUP approved uses in the city of the same use, they would find multiple police intervention situations that have happened. He didn't believe that the things they were doing were bad. He believed they were prudent. He also believed that in doing that they have gone over and above what other people in the same use and perhaps in even less appropriate locations were doing. So he didn't think it was quite fair to hold the fact that they were going over and above what everyone else was doing against them because it sounded so onerous. He hoped that the members of the commission would have taken the time to go by Caesar's Emperor and look at the operation and see what was going on. They would find it was just a family place that on weekend nights limited the age of people that could come in so that they could have some dancing and live entertainment. There were no 3 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1999 j .ref police problems there. There were police problems almost a year ago that were immediately stopped before the city even intervened. He would ask that the commission not deprive this person their right to carry on a business that was friendly to the city. It wasn't costing the city any extra in its law enforcement. In fact, it was less than other uses that were currently in existence. He invited the commission to ask him any questions they wanted about how they could help the commission feel more comfortable with what was going on at Caesar's Emperor and perhaps they could answer some questions that the commission didn't know about regarding the operation itself and whether it fits into this location. In their opinion it was the perfect location for some use like this. There wasn't a residence within a fairly large distance. He asked for any questions and asked the commission to look at the history of showing that this wasn't a bad use for this area and there were no deleterious effects whatsoever to the city. Commissioner Lopez said that in listening and reading to previous testimony, there was an insinuation that the conditions would go away at some certain a point of time. He understood that with the conditions of the CUP, this would not happen, that they would always be in force as long as the conditional use permit was in effect. He asked if that was correct. Mr. Hargreaves stated that the preliminary injunction which at this point imposes the conditions would lapse as soon as the lawsuit was dismissed. The conditions of approval go forward with the business as long as that particular CUP was in place and the applicant could come back at some point and ask that they be changed based on future circumstances, but they couldn't unilaterally escape any of those conditions. With a conditional use permit, if other problems develop out there that the conditions didn't address, they could call the applicant back before the commission and discuss imposing additional conditions. Mr. Koller said that even last time they stipulated that they would even come in for more often reviews than is required under the ordinance if that was what the commission should desire. They were not trying to do anything improper at the area. They were trying and had successfully been doing for almost six months what he would consider to be model business citizens of this city. Commissioner Lopez indicated that he hadn't been there and asked for a description of the activities that take place from 9:00 p.m. on as far as menu items, etc. 4 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1999 r.. Mr. Koller said they have expanded their menu items. For a while they basically served pizza after 9:00 p.m. That was expanded to include sandwiches and other food off of the menu. The only thing that changed was that a section of the restaurant had a dance floor that was cleared to give people the ability to dance and depending on what was going on that evening, there was either a live band or a disc jockey that played music so that people could dance. That was the only use of the restaurant that changed. He said the focus was probably on the entertainment, but the menu was available after 9:00 p.m., they limited the age of people coming in to 18 and older just because the city and the applicant felt that was a fair restriction. The character changed only because it became more of an entertainment venue than a restaurant venue, but so did other restaurants in the area, but the menu was available. Commissioner Campbell asked if anyone under the age of 18 would have to leave the restaurant at 9:00 p.m. Mr. Koller said that was correct. Commissioner Campbell asked if that was posted. Mr. Koller said it was posted. Very clearly one of the conditions, many of the conditions in there, had to be and were physically posted at the front door of the establishment. They hadn't had any problem with the public complying with that. It hadn't been an issue. Commissioner Lopez noted that the new conditions of approval required the age to be 21 and asked if that was correct. Mr. Koller said there was a long history of mistakes, but the actual court order said 18 and there was a mistake, and it was his mistake, of miscommunication. He believed that the age was 18 as it stood right now in the injunction and he asked that it remain as part of the city's conditions. Mr. Smith informed commission that it was staff's suggestion that the age be 21 . 5 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1999 Mr. Koller said that in due respect to Mr. Smith, in the original meeting when they met to determine what the conditions would be, the age was 18. He was not at that meeting. When it was transmitted to him, he understood it to be 21 so when they went into court with Mr. Phillips, they changed it to 21 and then he was informed that the city and applicant had agreed to 18, so they actually stipulated and went back to court and changed it to 18. He was not aware that staff had changed the recommendation to 21 . As a matter of fact, at the last court meeting, each side stipulated to age 18. Commissioner Campbell asked Mr. Koller if the facility was serving only beer and wine there. Mr. Koller concurred. Chairperson Jonathan asked if they were serving alcohol, why the age wasn't 21 . Mr. Koller explained that a lot of times people over the age of 21 have dates under the age of 21 . The people under the age of 21 didn't drink but they could dance and have some entertainment the same way if they went to Banana's, where they didn't have to be any age and they could go in and have the entertainment. Chairperson Jonathan said he thought there were restrictions for entertainment clubs for minors being in the vicinity of where alcohol was served, although he wasn't sure. Mr. Koller explained that was a different class of license. That was for the hard alcohol license. Chairperson Jonathan noted that Mr. Koller indicated that there was comparability between the way his client's establishment was being operated now and other similar establishments and that in fact other similar establishments have incidents of law violations. Mr. Koller said what he meant to represent, and he just happened to have read it in the paper on two occasions, where there were two occasions between the last time they met with the commission and now where clubs in Palm Desert had to have the police called out 6 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1999 `.w because they had problems there. He wasn't saying the club did anything in violation of the law, he was saying that perhaps a patron was drunk and got out of control and because of that the police had to be called in. They haven't had those issues because they put a presence right there on the establishment so that it was nipped in the bud. The mere presence of the uniformed officer had stopped all of the problems they have had. Chairperson Jonathan said his question was, of these other problems that Mr. Koller had become aware of in other establishments, if they would have included to his knowledge attempted homicide, domestic battery, or an actual homicide resulting in the death of a patron. Mr. Koller said the short answer to his question was obviously not. The long answer to his question was that in the short period of time, way back almost a year ago, there were some incidents that occurred at the restaurant that gave even them some concerns and they shut down the activities that caused that. He said there was a promoted event that occurs in various places around the Coachella Valley. Unfortunately, his client said yes to that and that was the Club Aftershock. Club Aftershock has been held in several venues all over the Coachella Valley. At the Club Aftershock was when the problems occurred. When those problems occurred, it was immediately stopped. Club Aftershock has not set foot in their restaurant since that incident and they have not had one police problem since that time. They were not permitted to be there and they would not permit them to be there. Chairperson Jonathan thanked Mr. Koller and asked if anyone else wished to speak in FAVOR or OPPOSITION to the proposal. There was no one and Chairperson Jonathan closed the public hearing and asked for commission comments. Commissioner Finerty stated that with regard to Mr. Koller's comments about some of the commissioners thinking that some of the things that went on there were so onerous that perhaps they didn't see that as their image for the City of Palm Desert, she believed that she was one of the commissioners that he was referring to. She said she wanted to reference Mr. Drell's declaration which said that as shown on the declarations from various members of the Riverside County Sheriff's Department, that this location has been the subject ..� of various incident reports for attempted homicide, possession for the use of 7 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1999 drugs, speed, domestic battery, possession of stolen property, vehicle theft, public intoxication, possession of marijuana, and most recently homicide. She would stand by her comments made on October 5 and she would be opposed to allowing this type of use to continue. Commissioner Beaty said he probably had changed his mind. It wasn't anything that Mr. Koller did. He had given this matter a lot of reflection and Mr. Koller mentioned that he didn't think the conditions as imposed reflected badly on the business. He thought they did and that they reflected badly on the city of Palm Desert and he would not be in favor of continuing the nightclub operation. He thought there was a wonderful opportunity for a pizza parlor there and beer and wine were fine, for families and for patrons of the movies when the movie concluded, but he felt the nightclub has caused problems and he would like to see it cease. Commissioner Campbell stated that she felt differently. The business had problems because of the Club Aftershock and since they were no longer there, the business was operating under compliance with the preliminary injunction and since then they haven't had any problems. Also, just because they had a club like this, that didn't mean that other areas in our city don't have people leaving the premises that were not intoxicated. This now has police right there to be able to go ahead and watch them. She didn't think they had the authority to tell someone how to run their business when they were in compliance and since this was not under the city's General Plan, she would vote that they remain there. She knew one of the conditions was for persons under the age of 21 not to enter the premises, she knew originally it was 18, and since they only serve beer and wine, she would be in favor of the age being 18. Commissioner Lopez said that in reviewing all of the materials and listening to the previous information, he still struggled with this from a standpoint that even with the conditions of approval, it seemed very difficult to approve something that would require such stringent rules and regulations on a business that were obviously there to protect the public, but they had to be there to protect the public because of obvious perils that were demonstrated there. However, the conditions were there and must be abided by. They had to be reviewed and he thought they needed to be reviewed periodically by whoever would oversee something along these lines, but he thought the conditions were so stringent that if in fact they were upheld, he believed the place would probably be okay. He had a problem with allowing 18 year olds 8 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1999 tow going into a nightclub atmosphere. Not a restaurant atmosphere, but a nightclub atmosphere to listen to bands and dance in what could be a very crowded condition where they could not possibly be watched as to if they were consuming alcoholic beverages or not. He would go along with the conditions of approval, but would require that the age be 21 . Chairperson Jonathan stated that he did not change his mind from the last meeting and he really tried hard to bend over backwards and find justification for granting a conditional use permit. It bothered him that the applicant began operating a nightclub without apply for a conditional use permit. The existing permit only allowed a restaurant use, but that was academic at this point. What weighed heavily in his mind was that the conditions that had been placed on the applicant in order to operate were so onerous as to make the business operation undesirable and incompatible with the city's commercial districts. The proposed use, he believed, would be detrimental to the public health, safety and welfare and would be materially injurious to properties or improvements in the vicinity. He also believed that the proposed business if it were allowed pursuant to the proposed mediations would not comply with the goals, objectives or policies of the city's General Plan. In a broader view, he thought this process of approval existed in order to give cities the opportunity to prevent undesirable businesses from locating and operating within its borders and this applicant had provided abundant proof of the undesirability of that particular portion of the application, specifically the nightclub operation. This was serious and people were dying. He thought it would be unconscionable for them to allow this to continue. He had no problem with the first portion of the request which was to continue the portion of the operation which was similar to Bubba Bear's serving pizza and pasta for lunch and dinner, but he would be opposed to the new portion of the permit which was to allow the nightclub use with dancing from 9:00 p.m. to 2:00 a.m. daily. Commissioner Beaty stated that he would put that into a motion. Mr. Smith indicated that the findings would also be taken from Chairman Jonathan's comments. Action: It was moved by Commissioner Beaty, seconded by Commissioner Finerty, to approving the findings as presented by staff. Motion carried 3-2 (Commissioners Campbell and Lopez voted no). NNW MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1999 i .nd It was moved by Commissioner Beaty, seconded by Commissioner Finerty, to adopt Planning Commission Resolution No. 1960, denying CUP 99-8. Motion carried 3-2 (Commissioner Campbell and Lopez voted no). B. Case No. CUP 93-7 Amendment No. 2 - KACOON'S OASIS, Applicant Request for approval of amendments to the existing conditional use permit to allow it to operate from 9:00 a.m. to 11 :00 p.m. daily and to permit a single, non-amplified acoustical guitar player/singer between the hours of 1 1 :00 a.m. and 9:00 p.m. Mr. Smith stated that the agenda needed to be corrected in that the request was as stated on the staff report and was somewhat different, so he would cover that in his report. Commissioner Beaty noted that the discrepancy was with the amplification. Mr. Smith said that was correct. The request was for amplified music. Staff's recommendation was not to go with amplified music and the agenda just referred to non-amplified music. Chairperson Jonathan noted that the single performer was also deleted. Mr. Smith said that was correct. Mr. Smith stated, so that everyone was clear, that the applicant was seeking approval of amendments to the existing conditional use permit to allow it to operate from 9:00 a.m. to 1 1 :00 p.m. daily. Current hours were 1 1 :00 a.m. until 10:00 p.m. And to permit amplified music set at the designated volume between the hours of 1 1 :00 a.m. to 10:00 p.m. Mr. Smith explained that this restaurant was originally approved under CUP 93-7 for the Sandwich Board back in 1993. In 1996 they reviewed a request to offer live music in the patio area. At that time the entertainment request was to range from a single non-amplified acoustical guitar to a four-piece amplified band. During the city's processing of the 1996 request, they heard from various people that the volume was excessive with the four-piece band. At that time the commission approved the request in part in that it was approved as a single non-amplified acoustical guitar player or singer between the hours of 6:00 p.m. and 9:00 p.m. Mr. Smith explained that now there were new owners who were seeking expansion of the business hours. Staff had no problem with that. They were also seeking the ability to have amplified music on the patio. He noted that staff included in commission packets letters of opposition and more were distributed tonight. Staff's position was that they should be allowed to have the non-amplified music between 1 1 :00 a.m. and 9:00 p.m., but that it not be allowed to be amplified, and that they be allowed to open at 9:00 a.m. He said he was asked by two people what opening at 9:00 a.m. 10 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1999 allowed the applicant to do and suggested that the applicant could address that in his comments to the commission. He asked for any questions. There were none. Chairperson Jonathan opened the public hearing and asked the applicant to address the commission. MR. GREG BRADFORD, 74-036 De Anza in Palm Desert, stated that he was the General Manager for the restaurant. He explained that the reason they asked for an amendment was so they could verify with the city what would be a reasonable venue for live music on El Paseo at their location. In general he wasn't sure what would be acceptable to anyone because they have had some complaints. They were going under the assumption when they first opened up from what was set as an example under the previous ownership. He was not aware of their limitations and once they heard the request to stop their music, he said he was allowed the sensibility to find out exactly where they stood with their program. What they were trying to accomplish with the 9:00 a.m. opening was to do a semi-early breakfast when people get moving out onto El Paseo. That was generally why they picked 9:00 a.m.; 7:00 a.m. on El Paseo was empty. When it came to the music section, they would love to be able to have something that would be compliant with all their neighbors. He talked with the ones who wrote letters, i.e., Desert Tennis and Golf, Sweet Sweet William, a hairdresser right behind them, and two shops that had written letters that were acceptable after he explained to them that they weren't trying to blow everyone out; they didn't want to blow everyone out with a four-piece deal, they just wanted to have basically two young ladies play guitars, whether they be amplified or not. That was the discretion of their neighbors, more than themselves, so that it wasn't interfering with their businesses. They wanted live music that would enhance El Paseo, as well as their own business and the businesses around them. They would be willing to accept anything that the Planning Commission would allow them to be able to do. What would they be able to do? Non-amplified during the lunch hour and then later on if it was acceptable to others in their neighborhood to go with two guitars that were amplified from 4:30 p.m. on. They would love that, but all they were trying to do was bring a business in there that would also enhance what El Paseo has already started to do. They found two young ladies that they thought were "„r both very good to play guitar. He thought that would be within reason 11 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1999 1 l if their neighbors would let them have a 30-day trial to see where it stands. If there were any complaints, they would be willing to shut it down right then. Commissioner Campbell asked Mr. Bradford if the restaurant was going to be open until 1 1 :00 p.m. Mr. Bradford said that for Friday and Saturday nights, yes. Commissioner Campbell asked if the closing time for the rest of the week was 9:00 P.M. Mr. Bradford said that in season, if business warrants it, they would like to be able to have the ability to stay open until 11 :00 p.m. They wanted to have the hours available there for them so they wouldn't have to ask for another amendment. If they could get it now, then it was pretty much resolved. Commissioner Campbell asked for clarification that if the restaurant was open until 10:00 p.m. or 1 1 :00 p.m., the non-amplified music would cease earlier. Mr. Bradford said that on Friday and Saturday nights, they would like to have it as late as possible. El Paseo right now was trying to gain some notoriety and get more business there and some of the restaurants like Sullivan's, Napa Tapas, Dakotas, all had live music. He thought it would be nice to allow the music to play until at least 10:00 p.m. Commissioner Campbell pointed out that the other businesses had their music inside. Mr. Bradford concurred, but said that with the volume, he wanted a designated volume that would be acceptable to everyone, not so it was blasting. They just wanted a place where people could go with their wives or husbands and sit back and enjoy a nice atmosphere at night with the fountain off to the side of the patio and maybe hear a couple of guitars playing. Something at a volume that wouldn't exceed 50 to 100 feet away from them. That was what he was trying to accomplish. If he had speakers out there at night from a regular stereo, I that would be more offensive. They were trying to be as compatible 12 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1999 with everyone that they could. The reason they had to come to the commission was to have something set with the city that was acceptable for everyone. Commissioner Lopez asked if they currently had a guitarist playing. Mr. Bradford said no. Once there was a complaint and he realized what the status was of their situation from 6:00 p.m. to 9:00 p.m. he said no more music at all until they approached and got some type of compliance. He in no way wanted to be out of bounds with anything. Commissioner Lopez asked if the entertainment he had before were two young ladies who played the guitar. Mr. Bradford concurred and explained that they had a small amplifier the first day. They realized that even for them it was too much so they asked them to turn it down. They also went to non-amplification. At that time the biggest problem was not how loud they were playing but r.. the location on their patio where they were playing and where the music was directed. At that time it was probably directed toward their neighbors. Now they realized if they put it on the opposite side of their patio, on the Lupine side, he didn't think it would be detrimental to anyone or that anyone could hear it on the other side of their patio. Commissioner Lopez asked if they also sang with mics. Mr. Bradford said yes, and at first they were. That was why they were asking for the amplification because the poor gals were straining their voices to be heard ten feet away with the street noise and things like that so they wanted to find an acceptable level of amplification for everyone. During the day he could understand that when the businesses were all open and they were drawing in their business, non- amplification would be okay. He could see also that at 4:30 p.m. and 5:00 p.m. at night when people were getting off work they wanted to have a little bit more and the businesses next door and near them were closing down. Then if at all possible he would like to have the gals have some amplification so that people walking by on the street might draw some attention to a place to sit down to enjoy. They were trying to enhance as much as other businesses on El Paseo. He thought El ••. Paseo was going through a growth stage and he heard last year people 13 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1999 were having problems with music levels and he could understand why people wouldn't want loud amplification. They weren't looking for that in any way. They were looking for something that was lower and acceptable. If at all possible, he wanted a 30-day trial period. Two of the people that wrote letters were agreeable to that because he also stipulated to them that if there were any complaints, they would knock it right off that day. Chairperson Jonathan asked if anyone else wished to address the commission in FAVOR or OPPOSITION to the proposal. MS. GINA COLEMAN, the owner, 75-477 Riviera Drive, addressed the commission. She pointed out that there might be other types of instruments as well. There might be a saxophonist, but it was their intent to have very mellow music. They weren't looking for anything loud. It would going to be a high class restaurant and they certainly didn't want to be disturbing the neighbors in any way. Their whole intent was to be good neighbors and have a place that was very pleasant to come to. They were willing to cooperate in any way to keep it that way. MR. ROB WHEATLEY, the owner of Desert Tennis and Golf Boutique Inc., addressed the commission and stated that they have been in business there about 20 years. He thought they were about three doors adjacent to the Kacoon restaurant that was proposing the music. Again, they weren't in favor of the music during the working hours because it was not conducive to their shopping environment for customers. A second reason as well would be that they usually have an open door policy at most of their stores during the winter season. The music would not be all that appropriate at that level if it was amplified during their working hours from 10:00 a.m. to 5:00 p.m. Probably more important, where he believed the two guitar players would actually be performing would be in a common area of this center, so this was an area that was trafficked by customers and this whole issue as far as he was concerned was academic for that reason alone. They weren't paying additional rent for that space that they would be using to perform this music. They were in agreement he believed with most of the retailers for having the music after hours. That would be more appropriate which would probably be from 5:00 p.m. through 1 1 :00 p.m. if that was what they wanted to do. He would say as far 14 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1999 v as amplified or non-amplified during the working hours of their retail environment, it would not be in the best interest of El Paseo. He thought that concluded how they felt about it. MS. TRACY RANDALL, 503 Flower Hill Lane in Palm Desert, stated that she was the owner of two stores in El Paseo Village: Gifts from the Heart and The Feathered Nest. She said that Gifts from the Heart was located directly adjacent to the Kacoon Oasis Restaurant and the Feathered Nest was about three doors down. She had spent more than six years saving to open her businesses. Three years ago she was able to accomplish that goal and she chose Palm Desert and El Paseo as a place for her businesses because of their high standards. Since then she has invested close to half a million dollars in her businesses, some $200,000 which was spent in rental fees for El Paseo Village. For the past three seasons she strived to build a store image and relationship with the community and a reputation for quality and consistency that her customers could count on. If they stepped into her store, she believed that they would find a room with a view to the comforts of life. Soft music, beautiful home decor pieces and charming children's furnishings. Building good will represented more than putting products in a window. It meant that her customers could come to her store to be within an atmosphere of comfort that they have come to expect. Her store offers air space filled with music that she not only sells in the form of CDS, but that created the mood which encouraged buying and enjoyment of the experience of shopping with her. Although the desert was becoming more of a year round community, their El Paseo season was still by large just six months long. During the season they keep their doors open. It was standard policy on the street and to their customers it meant they were open for business. Conversely closing the doors implied that they were closed. She had to maximize sales during the good weather so that she could not only survive the off season, but also allow her business to grow during the vital months of the high season and tourist activity. Keeping her doors open for business was both inviting and necessary. In three years with this philosophy she had tripled her average sales, but her success had not come easily. Retailers work extremely hard to earn customer loyalty and repeat business. As a young business woman, signing what had amounted to two five-year leases was not taken lightly. She read and reread the leases and when she signed them she understood the vow responsibilities she had committed to. She also felt the protections that 15 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1999 .dl the leases afforded her. Each lease stated very clearly that she had a responsibility to respect her neighbors' businesses. In turn she would appreciate that same consideration. Paragraph 9.4.6 of her lease clearly stated that a lessee should not permit or suffer the common area to be used in a manner offensive or objectionable to tenants by reason of noise, or interfere in any way with lessees' businesses. This conditional use permit for music would interfere and damage her business, her revenues and her established good will and would plainly be a violation of this part of El Paseo's standard lease. Their leases were intended to provide fairness and protection for all of them at El Paseo Village. They were in a one block, highly dense shopping area with 20 feet or less between the doors of their shops. To have music, amplified or not, just seven and a half feet from her door step in the common area as Kacoon has done in the past and was still doing was unfair, unacceptable and would certainly create a loss for her, not to mention the confusion that would be caused by the conflicting sounds of music. In paragraph 12.3 her lease specifically stated that lessees would not install amplified music that would be heard outside of the premises of the square footage in which they lease. Kacoon Oasis was now asking to play music not only outside their premises, but in an exclusive manner in a common area just seven and a half feet from her doorstep. Even now before the city has approved a conditional use permit, Kacoon Oasis already mounted speakers and was currently playing amplified music in the courtyard outside of her store. Like all El Paseo Village tenants, she paid a portion of her rent toward the maintenance of that common area. She was for all intents and purposes being forced against her will to pay for Kacoon Oasis to do business in a common area. They as retailers in El Paseo Village wanted all their neighbors to be successful, but they have all worked too hard to have their long standing successes derailed. While she wanted Kacoon Oasis to succeed, she could not allow their success to come at the expense of her own business. For these reasons she respectfully requested that the commission delay, deny and/or reconsider this motion for music anywhere but within the square footage of what Kacoon Oasis leases so they wouldn't deny her right to quiet enjoyment. Chairperson Jonathan said he wanted to be clear that Ms. Randall would find it objectionable to having any kind of music performed in the common area at f any time. 16 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1999 Ms. Randall said her businesses were open 10:00 a.m. to 5:00 p.m. six days a week and 12:00 p.m. to 4:00 p.m. one day a week, so her business week was less than 50 hours long. They were asking for music 66 hours a week, so she had no problem with music in the evening, no problem with them playing music within the square footage that they lease, but to set up music in a common area no, music traveled. Her music could not be heard outside of her door. Chairperson Jonathan asked if the applicant wished to offer rebuttal comments. Mr. Bradford said that the issue he brought up earlier was they realized that the music was located in an improper location too close to other people. That was why he said earlier that they would be putting it on the opposite side, on the Lupine Street side, so that it would be at the furthest location. Ms. Coleman said they weren't using the common area any way, they were only using the patio which was part of her business. Mr. Bradford said there was one portion of the area there that %W, was just off the steps to the direct patio that was indicated to them by the ownership of the property that it adjoined the common area that they were allowed to have seating in there at this time and any time they were there. He realized that the original location was inappropriate and a wrong area. That was why he indicated earlier that they wanted to put it on the opposite side, the street side, so that there would be more like 30-40 feet away from her area. Chairperson Jonathan closed the public hearing and asked for commission comments. Commissioner Campbell said she remembered when the previous Kacoon had the music there and she was really surprised they were there and that they had amplified music at that time. As Mr. Wheatley and Ms. Randall stated, she felt the music was previously in a common area and she had no objection to them having un-amplified music in their area of the restaurant or even having their doors open in the restaurant and have the music inside the area where the bar is. She's said she's been in the restaurant many times. If they had their music there un-amplified, it wouldn't disturb anyone or they could have it on the other side of Lupine where it wouldn't disturb anyone either. 17 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1999 Mr. Bradford asked if she meant the area right out where the bar door came out. Commissioner Campbell concurred. Mr. Bradford said that was the door he meant when he said Lupine, it would be right off of that door. Commissioner Campbell agreed that it was that little area right there. She noted that with all the traffic, they needed to be sitting close or they wouldn't be able to hear the music. She indicated that the recommendation from staff was un-amplified music from 1 1 :00 a.m. to 9:00 p.m. She said that was fine with her unless others found it objectionable at 11 :00 a.m. and then they would be restricted from 5:00 p.m. to 9:00 p.m. or maybe even 10:00 p.m. She asked staff if that would be appropriate. Mr. Smith noted that there was written correspondence from the residential community to the south, so he wasn't inclined to recommend 10:00 p.m. Commissioner Campbell said she didn't have any problems with the business being open at 9:00 a.m. either. At times on the weekend it would probably be better if they opened at 7:00 a.m. or 8:00 a.m. like some of the other restaurants so they could serve lid breakfast. The hours for her were fine from 9:00 a.m. to 1 1 :00 p.m. and the non-amplified music only in the business area, not in the common area, or inside the business from 1 1 :00 a.m. to 9:00 p.m. was fine, unless there were objections from the neighbors and they could come back to the commission for possibly changing the conditional use permit. Commissioner Finerty stated that she would be amenable to Kacoon's being open from 9:00 a.m. to 1 1 :00 p.m., but having read the correspondence from the neighbors as well as hearing from the adjacent businesses, she would like to see a 30-day trial period for the two non-amplified acoustical guitars/singers from 5:00 p.m. to 9:00 p.m. on the Lupine side inside the restaurant to see how that worked. Commissioner Beaty said he would be in favor of that compromise also with the stipulation that if it offends any of the adjoining businesses or neighbors, that the applicant would cease as they indicated they would, voluntarily. Mr. Bradford concurred from the audience. Commissioner Lopez asked for clarification on the permitted hours. 18 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1999 Commissioner Beaty said he liked Commissioner Finerty's recommendation of 5:00 p.m. to 9:00 p.m. and he would take it a little further to agree with Commissioner Campbell that they could do whatever they liked inside as long as it wasn't audible outside during the day. That wouldn't be a problem. And if they kept the outside non-amplified with twin guitarists or other performers, that would be restricted to after 5:00 p.m. Commissioner Finerty said she didn't want music during the day. She thought that the business owners made it clear that the music was unacceptable until 5:00 p.m. She felt more comfortable allowing the music after the other businesses were closed and then the music could begin inside. Commissioner Beaty asked if she was talking about music that could be heard outside the establishment or if there were any objections to music contained within the establishment. Commissioner Finerty said she didn't have any objection to music contained within the establishment. Her comments were two non-amplified acoustical guitar players/singers from 5:00 p.m. to 9:00 p.m. as a trial to see how that worked. Commissioner Beaty thought it would be okay for them to have music at lunch as long as no one could hear them except those inside. He thought that seemed fair. Commissioner Campbell reiterated her comments ..�. that they be allowed 1 1 :00 a.m. to 9:00 p.m. with non-amplified music when they stayed within their own area and then if the other business owners had a problem with that earlier part of the day, then they could come back to the commission and they could change the hours to 5:00 p.m. to 9:00 p.m. because when they had non-amplified music and two guitarists, if they weren't sitting right by them she didn't think it would be audible with the cars going by. Commissioner Beaty said that during a 30-day trial they would find that out. Chairperson Jonathan said his preference would be to come up with something that they thought was going to work and not be placed in a position of being arbiters between adjacent businesses. He'd rather not have a 30-day trial period. He would rather have some kind of a CUP that addresses the issue and if there was a violation or if there were complaints, people were always welcome to come to the commission. The consensus was that basically there was no objection to the business opening at 9:00 a.m. and he didn't really hear anyone objecting to non-amplified music between 5:00 p.m. and 9:00 p.m. He would be happy to leave it at that. Anything else in terms of what was done inside was a lease issue and not a Planning Commission issue. As far as exterior music that was a Planning Commission issue and he didn't want to limit it to two guitar players because they might want a saxophone player. �.. His suggestion was non-amplified music between the hours of 5:00 p.m. and 19 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1999 9:00 p.m. and leave it at that. Commissioner Campbell asked if that was outside and then inside they could have any music they wanted within their establishment, even at 1 1 :00 p.m. Chairperson Jonathan reiterated 5:00 p.m. to 9:00 p.m. because he was concerned about the residents who have had their sleep disturbed. He thought most diners were pretty much finishing up by 9:00 p.m., so the 9:00 p.m. limit recommended by staff made sense. His suggestion was simply non-amplified music between the hours of 5:00 p.m. and 9:00 p.m. Commissioner Beaty asked if Chairperson Jonathan had ever heard seven mariachis that were non-amplified within 20 feet. Chairperson Jonathan said that the problem with placing limits was where to stop. Two people could sometimes sing louder than four people acapella along with instruments. Commissioner Campbell asked if they were inside the restaurant, they could have music inside the restaurant at 11 :00 a.m. Chairperson Jonathan said he didn't want to address what happened inside the restaurant because that was a lease issue. As a Planning Commissioner, he wanted to address what happened outside. Commissioner Beaty asked if it would be ridiculous to discuss decibel levels or that type of restriction. That was one way to measure the sound level. Commissioner Finerty said that for residential areas between the hours of 7:00 a.m. and 10:00 p.m. it was 55 decibels and from 10:00 p.m. to 7:00 a.m. it was 45 decibels. She was really concerned for the people trying to sleep and the commission received letters from Sand Rock representing 64 units and there was another letter they received tonight. She would be very concerned about not disturbing the neighbors. She could go along with what Chairperson Jonathan recommended. Her only concern was with placing a limit. She heard what he was saying that four could sing softer than two, but since they were requesting two guitar players and that was what they currently had, she thought that was a reasonable request to grant them. Chairperson Jonathan said he would entertain a motion to allow an earlier opening hour of 9:00 a.m. and to allow non-amplified two guitar players/ singers between the hours of 5:00 p.m. and 9:00 p.m. Commissioner Beaty said that both the applicant and neighbors needed to understand that this was a conditional use permit. If it didn't work, they were welcome to come back and challenge it. Action: It was moved by Commissioner Finerty, seconded by Commissioner Lopez, approving the findings as presented by staff. Motion carried 5-0. 20 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1999 It was moved by Commissioner Finerty, seconded by Commissioner Lopez, adopting Planning Commission Resolution No. 1961 approving an amendment to CUP 93-7 to extend the business hours to 9:00 a.m. until 1 1 :00 p.m. daily and to permit two non-amplified acoustical guitar players/singers between the hours of 5:00 p.m. and 9:00 p.m. daily. Motion carried 5-0. C. Case No. ZOA 99-2 - CITY OF PALM DESERT, Applicant Request for recommendation of approval to the City Council of an amendment to Chapter 25.04 adding definitions for "bar or lounge," "nightclub," and "restaurant." Mr. Smith stated that the definitions were enacted in July as an urgency ordinance. The City Attorney in a memo dated October 22 suggested that the definitions be adopted following a public hearing, so the matter was scheduled tonight. The matter was a Class 5 Categorical Exemption for purposes of CEQA and staff recommended that the Planning Commission recommend to ,r the City Council approval of the amendment. Chairperson Jonathan opened the public hearing and asked if anyone wished to address the commission in FAVOR or OPPOSITION to the amendment. There was no one and the public hearing was closed. Chairperson Jonathan asked for commission comments. Action: It was moved by Commissioner Campbell, seconded by Commissioner Beaty, approving the findings as presented by staff. Motion carried 5-0. It was moved by Commissioner Campbell, seconded by Commissioner Beaty, adopting Planning Commission Resolution No. 1962, recommending to the City Council approval of an amendment to Chapter 25.04 adding definitions for "bar or lounge," "nightclub," and "restaurant." Motion carried 5-0. %MW 21 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1999 IX. MISCELLANEOUS A. ADOPTION OF RESOLUTION OF DENIAL PURSUANT TO PLANNING COMMISSION DIRECTION FROM MEETING OF NOVEMBER 16, 1999 - CASE NO. PP/CUP 99-20, NIALL F. SAUNDERS, AIA, APPLICANT Mr. Smith stated that at the time of the public hearing, the commission gave the applicant the opportunity to reflect and revise. He didn't avail himself of that opportunity. The next day they had reflected further and they were basically asking to withdraw that previous request. Staff received revised plans that would be presented to Architectural Review Commission next Tuesday, so staff's recommendation was to accept the applicant's letter of November 17 as a withdrawal and the matter would be tabled to come back with a further public hearing on the revised request. Chairperson Jonathan requested clarification that it wasn't a request for withdrawal, but a continuance. Mr. Smith said no, they weren't going to bring back what was seen before. Commissioner Campbell asked if the new ' proposal would come back to the commission as a new application. Chairperson Jonathan said they weren't really tabling the matter then, it was just a withdrawal. Mr. Smith said he was leaving those case numbers open so that they weren't collecting another fee from the applicant. They were going to look at it as a new project and the applicant was going to include a request for a change of zone this time as opposed to a conditional use permit. Chairperson Jonathan reiterated that the recommendation from staff was to accept the applicant's request for a withdrawal. Action: It was moved by Commissioner Campbell, seconded by Commissioner Finerty, to accept the applicant's November 17, 1999 letter of withdrawal for Case No. PP/CUP 99-20. Motion carried 5-0. X. COMMITTEE MEETING UPDATES A. ART IN PUBLIC PLACES - (No meeting) B. CIVIC CENTER STEERING COMMITTEE - (No meeting) 22 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 7, 1999 %00 C. DESERT WILLOW COMMITTEE - (No meeting) D. PROJECT AREA 4 COMMITTEE - (No meeting) E. PALM DESERT/RANCHO MIRAGE MONTEREY AVENUE CORRIDOR PLANNING WORK GROUP - (No meeting) F. ZONING ORDINANCE REVIEW COMMITTEE - (No meeting) XI. COMMENTS Mr. Smith reminded commission of the holiday party on Saturday and requested and received confirmation that there would be a quorum for the meeting of December 21 , 1999. XII. ADJOURNMENT `r It was moved by Chairperson Jonathan, seconded by Commissioner Finerty, adjourning the meeting by minute motion. Motion carried 5-0. The meeting was adjourned at 8:12 p.m. STE EN R. SMITH, cting ecretary ATTEST: �1 /� -:a?� — PAUL R. BEATY, Vice C airperson Palm Desert Planning Commission /tm 23