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Home My WebLink AboutSUPPTL INFO - Augusta's - 5/15/08 '>;`_.:�. ��'t'��° SLOVAK BARON _' �� `_��'"``�� ,-F� �� EMPEYLLP ` ��,t� o��r, c n A T T 0 R N E Y S A T L A W ��p 1�`� �� n� O� (3 J I� 7• ri i��nin>s.si,�vn� 1800 E.TAHQUITZ CANYON WAY, PALM SPRINGS,CA 92262 oRANGE COUNTY OFFICE �,�v�u�.Bn�"�N PHONE(760)322-2275 FAX(760)322-2107 650 TOWN CENTER DRIVE,SUI7E 1400 MAI:C E.HMPIlY COSTA MESA,CALIFRONIA 92626 J��N�.�ni�nreiNrit PHONE(714)435-9591 FAX(714)850-9011 PbJI�R M.&�CI INI Ir�ICI I CII,ARLI�L.G�AI.I.At;lll9t f�IJ�:N I�S.CI.1:�1AfI R Su.nN W.AuSMAN Ml�IIIJ�I-N F.GI I�NnN SII�I�N M.M��RPIIY INi D.Gi iinir.tiuc Ct;b.N�ri u�.it A.Fici rrb:it Jnnui�Os�rii��rr ur C,,un�si� Mt�ia�n;Mi��rr>,P.C. 1-i.!Vb:�i.\�/r.i.i.;I II January 30, 2008 VlA HAND DELIVERY City Clerk City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260-2578 Re: Appeal of Planning Commission Decision/Request for Trial De Novo by Augusta Restaurant and Denise Roberge Dear City Clerk: Our office represents Augusta Restaurant and its owner Denise Roberge ("Augusta"). This letter shall serve as Augusta's "appeal" of a decision of the Planning Commission and a request for a Trial De Novo before the City Council of the City of Palm Desert ("City"). Some background on this issue is provided below. On January 15, 2008, the Planning Commission of the City adopted Resolution 2462 Modifying Case No. CUP 96-15 (Amendment No. 3). By this Resolution, the Planning Commission seeks to eliminate music in the outdoor dining patio area of Augusta. By Stipulation between counsel for Augusta and the City Attorney for City, all parties agreed that Augusta is entitled to have a hearing De Novo before the City Council. That is, none of the normal requirements to have a full hearing with evidence provided on both sides was required before the "informal proceedings" heretofore occurring before the Planning Commission. Accordingly, while this letter is in one sense an "Appeal" of the Planning Commission's decision reflected in its Resolution, it more properly can be characterized as a Request for a Trial De Novo. There is no formal statute of the City addressing this unique stipulation and approach, but counsel for the City and Augusta City Clerk City of Palm Desert January 30, 2008 Page 2 have agreed that the filing of objections through this letter to the Planning Commission's ruling stating generally the reasons for the objections would satisfy the requirements of the City's statutes governing this matter and would then require a de novo hearing before the City Council. Augusta respectfully submits that the decision of the Planning Commission should not be adopted by the City on numerous grounds to include the following: 1. The manner in which the City has proceeded in seeking this revocation has violated Augusta's rights to both procedural and substantive due process under both the U.S. Constitution and the Constitution of the State of California. Some of the details surrounding those violations are set forth below; 2. The Planning Commission in accepting the recommendation of the staff of the City acted in excess of its powers and has unlawfully usurped the authority of the City Council by revoking Augusta's vested right under the CUP to play music when the level now played is within the limits of the sound ordinance adopted by the City Council; 3. The City through its staff and Planning Commission have acted in bad faith and are otherwise estopped to revoke Augusta's right to play music under its CUP. Augusta was given a target to reach of complying with the existing City sound ordinance which includes a 55 decibel level commencing at 10:00 p.m. Most of the complaints and sound readings upon which the City staff based its charges were out dated; 4. Augusta fully cooperated with the City staff and even purchased sophisticated sound meter equipment in order to take readings to direct its sound mediation measures and to confirm compliance. Augusta engaged professional experts and followed their recommendations. Those recommendations included installation of sound barriers and the ordering of custom sound proofing curtains which assured Augusta's consistent compliance. Each step along the way Augusta informed City staff of its efforts and City staff encouraged Augusta to so proceed; 5. On December 20, 2007, Augusta cooperated with City staff by holding a joint testing night. Augusta's sound consultant, with City representatives present and in agreement, purposely instructed the band to turn up the music volume in order to do different testing while moving various sound barriers to determine their impact. All parties agreed and understood that this night was for testing purposes only. Later, Augusta was shocked and felt sabotaged to learn that the readings taken on this evening were made part of the January 15, 2008 Staff Report supporting the faulty conclusion that Augusta was out of compliance; 6. One of the most disturbing legal and equitable violations of Augusta's rights surrounds the fact that the City began its legal proceedings against Augusta based G:ALitigation Dept\Augusta Restaurant\CorrespondenceAAppeal to CityClerk I-29-08.doc City Clerk City of Palm Desert January 30, 2008 Page 3 upon certain charges i.e. non-compliance with the City's noise ordinance, and then changed the basis of the revocation when City staff and the Planning Commission learned that those charges were meritless as compliance existed. This is most pointedly reflected in an e-mail of Lauri Aylaian, Director of Community Development. First, she admits that the City's own sound readings at Augusta taken "unannounced" were "remarkably close to 55 db." This was at a time prior to Augusta's installation of its sound proofing curtains that had been already paid for and which the City knew were soon to be installed. Ms. Aylaian then states "With the curtains, it is entirely possible that they will come in under 55 db, which leaves us in the uncomfortable position of them arguing that they are compliant, and the residents still not being satisfied." Finally, the true abuse of power and the true position, not then disclosed to Augusta, came through when Ms. Aylaian states, "(Our staff believes that even at 55 db, they present a disturbance far neighbors)." The evidence is clear that what was occurring was that staff was setting its own standards and creating a new case against Augusta. On this bad faith and late coming basis the Planning Commission adopted the Resolution at issue. The decision of the Planning Commission was based upon completely inaccurate and outdated facts presented by City staff under a faulty legal standard created by staff, not the City Council. Indeed, its position contradicted the City's own ordinance and created an improper basis upon which to attempt to modify Augusta's vested legal right to play music under its CUP; 7. Augusta was requested to cooperate with City staff and it completely did so. The same is not true with respect to the City's actions. Augusta was requested to meet with Lauri Aylaian. Attempts were made to do so and on two occasions Augusta was denied meetings with Ms. Aylaian and code enforcement. Finally, a meeting was held, but by this point in time the staffs' position and that of Ms. Aylaian had changed. No longer was compliance with the City's noise ordinance enough. A new standard had been adopted. In a word, City staff acted in bad faith; 8. Augusta's rights have been violated by City's refusal to provide all evidence upon which it is proceeding against Augusta to include the names of those reportedly complaining about noise and the precise complaints with dates, times and locations. Numerous requests were made by Augusta to City staff before testing, during testing and after testing to identify the problem locations to allow Augusta to target its sound mediation and to verify the City's test results. Each request was denied by City staff to provide the requested information. City staff has taken the position that any complaint from any source however motivated is enough to create a basis to revoke Augusta's vested right to play music on the apparent theory that they do not want to be bothered anymore. Due process requires not only disclosure of same, but also that City be required to subpoena such witnesses to any hearing to the extent that the City wishes then to rely on same to take actions adverse to Augusta; G:ALitigation Dept\Augusta Restaurant\Con�espondcnceAAppeal to CityClerk 1-29-08.doc City Clerk City of Palm Desert January 30, 2008 Page 4 9. Up to this point Augusta has not had an opportunity to be placed on clear notice of the charges against it. The underlying theme of the City and its staff to date has been there is no need to do so and that giving clear notice will only allow Augusta to meet the requirements of the City which would then preclude staff and the Planning Commission then to do what it really wants and silence Augusta's music, whether merited or not; whether legal or not; and/or regardless of the devastating financial consequences to Augusta; 10. The basis of the underlying decision of the Planning Commission includes substantial, if not complete reliance, on stale, outdated and/or inaccurate information. The playing of music by Augusta does not constitute a nuisance. For example, despite Ms. Aylaian's admission during the January 12, 2008 metering of noise that music could not be heard at certain locations as suggested by some, at the Planning Commission hearing when Ms. Aylaian was asked if such was true, she was reluctant to respond and did not correct the misimpression by the Staff Report given to the Planning Commission. The decision of the Planning Commission to that effect was not supported by competent evidence. The manner in which the City has proceeded to date has denied Augusta a meaningful opportunity to be heard. For example, despite an inappropriate telephone campaign by staff encouraging people to appear and with public notice given as required of the meetings, at the hearing before the Planning Commission on December 4, 2007, only four people attended voicing any concerns and only one additional person appeared at the December 15, 2007 hearing as best can be recalled by Augusta without reference to the meeting minutes; 11. The overall effect of the changing positions of the staff regarding the basis upon which its recommendation would be made to modify the CUP combined with inaccurate and incomplete information provided was made even worse by the late disclosure of such positions as staff reports were normally not released to Augusta until the Friday before the hearings. The result was to deny Augusta due process and a fair hearing by not allowing Augusta adequate time to prepare responses including correcting inaccuracies. The manner in which the proceedings occurred violated also the City's own code at Section 25.72.130 regarding the requisite notice to be given to Augusta; 12. The basis of the decision of the Planning Commission was not reasonable in nature, credible and/or of solid value. There was no substantial evidence before the Planning Commission and none otherwise exists to justify the taking of Augusta's fundamental vested right under its CUP to play music. Upon issuance of the original CUP, Augusta has expended large sums of money and engaged in a business that is dependant upon its ability to play music. Furthermore, to insure compliance substantial sums of additional money have been spent by Augusta. Given the severe financial impact upon Augusta by the "taking" of this vested property right, Augusta submits that such violates California law. The decision of the Planning Commission effectively destroys the ability of Augusta to survive and damages it substantially. There is no G:ALitigation Dept\Augusta Restaurant\CorrespondenceAAppeal to CityClerk 1-29-08.doc City Clerk City of Palm Desert January 30, 2008 Page 5 compelling reason or evidence to justify such a result. The decision of the Planning Commission is both arbitrary and capricious; 13. For all the reasons set forth above, the decision of the Planning Commission was an abuse of its discretion; and 14. The actions of City staff and Planning Commission set a dangerous precedent that the City should reject. It elevates staff and the Planning Commission to the level of City Council Members. The effect of the Planning Commission's decision is that no restaurant or business in the City may play music. The "new standard" of City staff and the Planning Commission is that any level of music heard by anyone means no music can or should be played if someone complains. Nowhere in the law or in logic can or should such a standard be created generally for the City and certainly not by City staff ar the Planning Commission. Moreover, even assuming for the sake of argument only, such is going to be the standard for the City in the future, Augusta's fundamental vested right preexisting through its CUP, causes any such new standard to be inapplicable to Augusta as a matter of law and equity. As previously discussed with the City Attorney, Augusta respectfully requests that before this matter proceeds in a formal fashion with adherence to all procedural due process requirements, that there be an "informal" public hearing on February 28, 2008 at which time information could be shared to assess whether there is any need to proceed further. Augusta respectfully submits that the City Council on its own motion should revoke the decision of the Planning Commission without the necessity of any further legal proceedings or litigation as such is not in the best interest of the City or Augusta. With Augusta's compliance with the City's noise ordinance, this unfortunate exercise in abuse of power by City staff and the Planning Commission should end. Very truly yours, SLOVAK BARON& EMPEY LLP �-i�� THOMAS S. SLOVAK TSS/can cc: Denise Roberge via fax (760) 340-9522 Robert W. Hargreaves, Esq. via fax (760) 340-6658 G:ALitigation Dept�Augusta Restaurant\CorrespondenceAAppeal to CityClerk 1-29-08.doc John E. Alle '"' ,. t �.�..: SHADOW MOUNTAIN PROPERTIES LLC °�� ' r ':� �� ' '�'r" ��`� � G�i�s�'�`�9 .._�_�' , �f: 2118 Wilshire Boulevard, Suite 100 Santa Monica, California 90403 �� Y `� �� 32 Ms. Rachelle Klassen May 6,2008 City Clerk Palm Desert City Council 73-510 Fred Waring Drive ' Palm Desert, California 92260 Re: Legal Notice/Case NOS. CUP96-15 Amendment#3 Subject property located at 73-995 El Paseo(APN: 627-272-005) Dear Rachelle: I am responding to your notice regarding a public hearing to be held before the Palm Desert City Council to consider an appeal of the Planning Commission decision to amend an approved Conditional Use Permit to eliminate nightly music entertainment in the outdoor dining patio area of Augusta's Restaurant. I own several residential income properties in the vicinity. The excessive noise (music and voices)continues. I believe the outdoor music is above the permitted sound levels. Worse,the noise continues past 11:30 p.m., sometimes until 1:00 a.m. and 1:30 a.m. I have lost four tenants in a building two and a half blocks away, specifically because of the noise. Even with windows closed, the loud music and voices into the early morning hours are wrong,disrespectful and unfair to nearby residents. The residential market is extremely soft and there are unprecedented levels of vacancy along Shadow Mountain Drive and Larrea Street. I and other hardworking building owners are being unfairly and financially penalized by owners of the Augusta Restaurant who seem to have complete disregard to their neighbors and fellow citizens. I ha�e called on numerous occasions wnile the music is being played. The manager and other who pick up the phone have admitted they cannot even hear the phone ringing because of the high levels of music. I have also visited the restaurant at various times during the day and tried to make an appointment to speak to the owner(s). I have never received a reply. Two years of the same problem is too long. I oppose (as do my tenants) any music above the permitted levels past 9:00 p.m. Sincerely, John E.Alle 310-990-7124(cell) Klassen, Rachelle Subject: FW: Augusta Music From: Gilligan, Sheila Sent: Friday, May 09, 2008 3:25 PM To: Klassen, Rachelle Subject: FW: Augusta Music From: susan bue [mailto:suebue2@yahoo.com] Sent: Wednesday, May 07, 2008 5:11 PM To: InformationMail Subject: Augusta Music Hello there. I am a resident of Ironwood in Palm Desert. I hope the City Council will vote to KEEP the music at Augusta Restaurant. My husband and I look forward to spending several evenings a month having dinner on the patio while listening to the music. We have taken many out of town guests there and all agree that the combination of setting, food and musical entertainment is enjoyable as well as memorable. The City of Palm Desert would be doing a disservice to it's residents by restricting musical entertainment in an area zoned for restaurants & shopping. Thank you, Susan Bue 73384 Poinciana Place Palm Desert, CA 92260 i s Restaurant Rankine Restaurant Rankin� Tommy Bahama 1 Serenata Mexican Bar and Gr 47 Pacifica in the Desert 2 Matsuri Japanese 48 Ruth's Chris Steak House 3 French Corner Cafe 49 Olive Garden 4 Bamboo House 50 Sullivan's Steakhouse 5 Bellini 51 Daily Grill 6 Town Center Cafe 52 Outback Steakhouse 7 Los Pepes Mexican Grill 53 Morton's of Chicago 8 Musashi Japanese 54 Elephant Bar 9 No Da Te Japanese 55 Castelli's Andreinos 10 Back Street Bistro 56 HomeTown Buffet 11 Chez Pierre 57 Applebee's Grill 12 Red Barn 58 Islands Fine Burgers 13 Charlie's Calif Fresh 59 Cuistot 14 Mama Liveri's Italian 60 Romano's Macaroni Grill 15 La Bella Cucina 61 Tony Roma's 16 Cucina Pasta 62 Augusta Restaurant 17 Palmie French 63 Armando's Bar& Grill 18 Tequila Club 64 LG's Prime Steak House 19 All Pro Pizza 65 Jillians 20 Tanpopo Loco 66 Sammy's Woodfired Pizza 21 Little Dono Sushi & Grill 67 Fisherman's Market & Grill 22 Le Donne Cucina 68 Palm Desert ChopHouse 23 Mc Cormick's Nightclub 69 Cafe Des Beaux Arts 24 EI Molcajete Taco Shop 70 Pat and Oscars 25 Excludes Fast Foods Casuelas Cafe 26 Papa Dan's Pizza 27 Marie Callender's 28 Denny's 29 Keedy's Fountain & Grill 30 Chuck E Cheese 31 The Jetty 32 19th Hole 33 John's Restaurant 34 Baker's Square 35 IHOP 36 Roc's Firehouse Grille 37 China Wok 38 Firecliff 39 Jimmy G's 40 McGowan's Irish Pub 41 Bella Vita 42 Picanha 43 Trattoria Tiramisu 44 La Spiga 45 Pizza Hut 46 q� � § � =3' �` � f� � "s�'2 , � € - g� � € � � ��• _µ = �- - 73-510 FRED WARING DRIVE PALM D6STRT, CALIFORNIA 92 2 60-2 5�g TEL: �C�O ,346—OC�I I Fnx: �60 340-0574 cityhall @ci.palm-desert.ca.us OFFICE OF THE MAYOR � -"-- May 7, 2008 Ms. Denise Roberge 73951 EI Paseo Drive , � Palm Desert, C ' nia .�2`260 � �1� Dear Ms. ober;e� The City has received an unsigned letter from you with regards to the matter that the City Council has scheduled �or a hearing on May 15, 2008, 10:00 a.m. The letter will be distributed to all Council Members and will become part of the�record for the Public Hearing. Sincer�ly, ; r ��r�� ,•�/ JE'" M. BENSON M� O R MB:CLO:kr Cc: City Council � � � c � � � � o � � � � � � e�6 VAINi(OONAFCY(lEPopvEA Confirmation Report — Memory Send Time : May-OS-OB 02:29pm Tel line : 7603400574 Name : CITY OF PALM DESERT Job number . 707 Date . May-08 02:29pm To . 7798722 Document pages . Ol Start time . May-08 02:29pm End time . May-OB 02:29pm Pages sent . O1 � Status . OK Job number : 707 *��x SEND SUCCESSFUL *�� C � � Y t� � � flti� � � � � � � � 73-5 io FxFra WAR(NC: L]nrv� p/LZ-M DJZiFRT� GAl�laORNTA q236o-157Q TBL: 7Fio 346—c>6z z L'AX: 7�0 3qo�o374 '�Yf+alJ�ci.y W m-dsa..r�.ca."' Oun•�n or rxa M..von 4 � �' --- --�--- -- -._ _ M0�/ 7, 20Q$ Ms_ �er�isa Robarge 7395� El Pas�o �rive Palm �esort, C nia 260 �oar Ms_ ober�� Tt�e City Y�as racalved an unsignad letter from you with ragards to tF�e mattar that the City Cou�cil has scFieduled for a haaring vn May �5, 2008, 10:00 a.rr�. The letter wi11 be distribut�c! to a11 Council Meml�ers and wilf become part of th�.�ecord fior the Public Hearing_ Sirocer' ly, � J�� M. BENSON N! O R MB:CLO:Icr Cc_ C1ty Councit S9..�.r.�...��..u...... r,,, _ April 10, 2008 `� = � �, - � -� � � --�: � _ �:-� . ��,; ' �ear City Council Members � `' `:''`�"_. �. <��. � � __,_ �.1 - — c�v;' I wouid like to share my thoughts on the music at Augusta. � � � �, First I must say that I have not always been considerate of my neighbors. I should have reacted earlier and with more conviction to help solve #he noise issue created by the music at Augusta... for this I nm sorry. Augusta is a unique and great restaurnnt that Palm Desert realiy needs, its clientele is made up of mainly 40-70 year olds thnt love music. We entertain many of the visitors that co�ne to town for various tournuments and the younger adults thnt have parents (ivir►g here seasonally, we also cater to the various business owner's and professionals that want a fun and exciting evening out. The diners that want a quieter evening out go to Jiilian's, St. Germaine, Cuistot and other great restaurants in the Desert. If you were to tnke awuy the music from Augusta, that would seriously dqmage the restaurant, as its clientele is built around the music. Augusta has done many things in the last year to help bring the noise level down, lh/e have put a retractable ceiling over the putio, curtains on the wall, had a sound engineer come in and install removable sound baffles, the easel Mattresses, carpet under the band, last week our custom sound panels came to put around the drums, and a noise reader that sets a light off that the band can see if it passes a certain decibel point. We have purchased two sound readers that record and graph the decibel reading from approx. Z miles away. We have worked very hard and successfully to bring the noise level down to code. Augusta has worked hard and honest with the city to try to get the noise level down to code. This is the direction we were given by city staff to come into complinnce with our CUP. We were led to believe the city was working with us anly to find out that this was not the case. When we started to get the level very close to cade and the potential to go under code before the planning commission rrteeting the follawing E-mail came to us by mistake. This was sent to the city attorney from Laurie in Planning #he day before the Planning Commission Hearing. The E-mail read as follows! "We measu.red sound levels at Augtasta" (unannounced) on Saturday night. The readings were remarkably close to 55 decibels. Attached is the Report from the Code Enforcement officera "They were also trying to install new sound curtains that just arrived on Saturday, but did not have them up at the time of our monitori.ng. With the curtains it's entirely possible that they will come in under 55 Decibels, which leaves us in the uncomfortable position of them arguing That they are compliant and the residents still not being sati.sfied (our Sta�f believes that even at 55 decibels they present a disturbance for The neighbors) We need to talk about how the presentation vvii2 be made at tomor�ows Hearing." This e-mail was really disappointing �o us, as �ve reali�ed then that the code enforcement department had no intent�oras �f �eaving �s alone even if we reached the 55 decibels that we were nil supposedly trying for and the o$ficers were actuQlly uncomfortable that w� had reached the 55 decibel The Code officers didn't even wa�t �t� seE i� th�re w�re going to be compla�ints at 55 but decided that Flugcrsta was a Public Nuisance and decided that that was whut they were gming to present to the planning commission at the he�ring that was happening the next day. They didn't stop fo think what this cost �the rest'aurant and the city when there was no solution acceptable to them other than to kill the music. I feel Code enforcement has actually encouraged the complainers, the last meeting I had with the five or six city officiQls ir� March I asked how many compinints they had in recent times. I was t�ld #h�y didn't know thut, the complaints were now going to council mer�be�s, w�6� fihey had to tell the complainers to call council or council asked to have this happen. The complctiners had been notified by mail ccnd called about the public hearings. The first meeting only 4 to 5 people showed up and the second hearing with lots of warning und time for the com�lainers to rally as many people as possible behind them could only come up with 6 to 7 people and some were friends of the complainers out of the neighborhood. To close down something that thousands of people er.j�y to satisfy a few is not fair to the rest of the citizens or to destroy a good business seems wrong. People love to live next to a beautiful commercia! �rea like EI Paseo bufi must accept some of the drawbacks tha�t go w9th t�e pleasures. Augusta has had problems with th�e �ecc��dir�g� �-�Q� #h� code enforcement officers have taken. When a vehic3e of any �i�c� r�rdkies �y or a horn is blown or a group of pe�ple ure talking it drives tl�e �i�Fi c�m�G�el reading wuy up thus distorting the average readir�g Qnd c�_ra. �e��g �� 55 decibels. We received the results of the reading fo� th� pas� e��pge �f �eeks and noticed the high was higher than normal and called d��h t� the city to ask why, and only then did they share that c� hor�� was so6�rs�� a�d c� croup of people went by the sound reeorder tctlking thus 5hoo�i�g #he high up. There were na remarks on the graph ctnd the �vernge dec��ae9 r2�adinr� �4�e city E-mailed us stating what happen to drive the hi�n s� high ther�efar�e �vhom ever they show these reading to would n�t know �th�t i�- ��s�'i- A�gusta t�nt caused the reading to be 1 decibeP above, I huv� �ero �r�;�t �n �-h� t�e.ad Code enforcement Officer, as he is deter�ined t� ��-�d �iiQ g� t� ctny ler�gth to stop the music. I have been in the home of o�e o� �h� f�ny °�et�,� ��y�plc�ir��r� c�nd could not hear the music inside his house. Ga�ld '��r � fa�n# s��nd �Faat there was music somewhere when I went �ut �n his pa��, '�r�'� kr�� nyone that sits out on their pntio at 10:00 in the ��int�r° c�n� if �a� �a:��fed ta r�ad your book out their you could have. I have shared t4��s infortm�ati�n with code officers and others many times yet the cort�plainers r�� aboui- h�w nice the code officers are and yet the officers have not g�ne ir�s�de anyone's house. I am open to any suggestions that cour�ci! r�i�f�t o�f�r �nd make any reasonable changes to keep my Ct1P. I �ro�ld lEk� �� re�olve this with council as I am having a hard time with my att�rney �� r�lkar�g �rith the city's new attorney and nrranging truil rlates a�d � ��e! b�tl� a�tesrn�y's are chasing the dollar from the city and me. I'm sure there �r€�s� b� s�tn� w�y we can resolve this without ca trial. Please ad�rise, �i�c��°�ly Denise R�berge Michelson, Wilma From: Michelson, Wilma Sent: Monday, May 12, 2008 2:29 PM To: 'Denise Roberge' Subject: RE: letter to members of City Council No, because those come to me too. I received them at that address but when I respond to you it shows my other address with the wmichetsonCa�ci.palm-desert.ca.us. The bottom line is we never did received you letter until Bob Spiegel brought it to us. When I confirmed receipt it was for your email, not for the attachment. I thought last week when I sent you copies of your email and my responses that was clear. They have the times on them. From: Denise Roberge [mailto:denise@deniseroberge.com] Sent: Wednesday, May 07, 2008 5:21 PM To: Michelson, Wilma Subject: FW: letter to members of City Council Ms. Michelson: On looking more into this I am forwarding from my Sent file und notice this E- mail did go through but not to your address to cityhallC�ci.palm-desert.ca.us does this help explain the situation. Thanks �enise From: Denise Roberge Sent: Wednesday, April 16, 2008 1:17 PM To: cityhall@ci.palm-desert.ca.us Subject: letter to members of City Council Please distribute this to Council Members. Thank you Denise Roberge � Michelson, Wilma From: Michelson, Wilma Sent: Thursday, May 08, 2008 8:26 AM To: 'Denise Roberge' Subject: RE: I did confirm receipt of your email but I did not realize there was nothing attached. That is when I sent you the second email saying no attachment so I assumed it was just a test to see if you had the right address, and the attachment was coming. I never received the letter. From: Denise Roberge [mailto:denise@deniseroberge.com] Sent: Wednesday, May 07, 2008 5:05 PM To: Michelson, Wilma Subject: RE: This is the E-mail that I thought confirmed you received the letter. Denise From: wmichelson@ci.palm-desert.ca.us [mailto:wmichelson@ci.palm-desert.ca.us] Sent: Wednesday, April 16, 2008 1:10 PM To: Denise Roberge Subject: RE: Receipt confirmed From: Denise Roberge [mailto:denise@deniseroberge.com] Sent: Wednesday, April 16, 2008 1:09 PM To: CiryhallMail Subject: � Michelson, Wilma From: Denise Roberge [denise@deniseroberge.com] Sent: Wednesday, May 07, 2008 5:21 PM To: Michelson, Wilma Subject: FW: letter to members of City Council Attachments: City Council.doc Ms. Michelson: On looking more into this I am forwarding from my Sent file and notice this E- mail did go through but not to your address to citvhallC�ci.palm-desert.ca.us does this help explain the situation. Thanks Denise From: Denise Roberge Sent: Wednesday, April 16, 2008 1:17 PM To: cityhall@ci.palm-desert.ca.us Subject: letter to members of City Council Please distribute this to Council Members. Thank you Denise Roberge i April 10, 2008 Dear City Council Members I would like to share my thoughts on the music at Augusta. First I must say that I have not always been considerate of my neighbors. I should have reacted earlier und with more conviction to help solve the noise issue created by the music at Augusta... for this I am sorry. Augusta is a unique and great restQurant that Palm Desert really needs, its clientele is made up of mainly 40-70 year olds that love music. We entertain many of the visitors that come to town for various tournaments and the younger adults that have parents living here seasonally, we ulso cater to the various business owner's and professionals that want a fun and exciting evening out. The diners that want a quieter evening out go to Jillian's, St. Germaine, Cuistot and other great restc►urants in the Desert. If you were to take away the music from Augusta, that would seriously damage the restaurant, as its clientele is built around the music. Augusta has done many things in the last year to help bring the noise level down. We have put a retractable ceiling over the patio, curtains on the wnll, had u sound engineer come in and install removable sound baffles, the easel Mattresses, curpet under the band, last week our custom sound panels came to put around the drums, and a noise reader that sets a light off that the band can see if it passes u certain decibel point. We have purchased two sound readers that record and gruph the decibel reuding from approx. 2 miles away. We have worked very hard and successfully to bring the noise level down to code. Augusta has worked hard and honest with the city to try to get the noise level down to code. This is the direction we were given by city staff to come into compliance with our CUP. We were led to believe the city was working with us only to find out that this was not the case. When we started to get the level very close to code and the potential to go under code before the planning commission meeting the following E-mail came to us by mistake. This was sent to the city attorney from Laurie in Planning the day before the Planning Commission Hearing. The E-mail read as follows! "We measured sound levels at Augusta" (unannounced) on Saturday night. T'he readings were remarkably close to 55 decibels. Attached is the Report from the Code Enforcement officer. "They were also trying to install new sound curtains that just arrived on Saturday, but did not have them up at the time of our monitoring. With the curtains it's entirely possible that they will come in under 55 Decibels,which leaves us in the uncomfortable position of them arguing That they are compliant and the residents still not being satisfied (our Staff believes that even at 55 decibels they present a disturbance for The neighbors) We need to talk about how the presentation will be made at tomorrows Hearing." This e-mail was really disappointing to us, as we realized then that the code enforcement department had no intentions of leaving us alone even if we reached the 55 decibels that we were all supposedly trying for and the officers were actually uncomfortable that we had reached the 55-decibel The Code officers didn't even wait to see if there were going to be complaints at 55 but decided that Augusta was a Public Nuisance and decided that that was what they were going to present to the planning commission at the hearing that was happening the next day. They didn't stop to think what this cost the restaurant and the city when there was no solution acceptable to them other than to kill the music. I feel Code enforcement has actually encouraged the complainers, the last meeting I had with the five or six city officials in March I asked how many complaints they hnd in recent times. I was told they didn't know that, the complaints were now going to council members, well they had to tell the complainers to call council or council asked to have this happen. The complainers had been notified by mail and called about the public hearings. The first meeting only 4 to 5 people showed up and the second hearing with lots of warning and time for the complainers to rally as many people as possible behind them could only come up with 6 to 7 people and some were friends of the complainers out of the neighborhood. To close down something that thousands of people enjoy to satisfy a few is not fair to the rest of the citizens or to destroy a good business seems wrong. People love to live next to a beautiful commercial area like EI Paseo but must accept some of the drawbacks that go with the pleasures. Augusta has had problems with the recordings that the code enforcement officers have taken. When a vehicle of any size drives by or a horn is blown or a group of people are talking it drives the high decibel reading way up thus distorting the average reading and can send it over 55 decibels. We received the results of the reading for the past couple of weeks and noticed the high was higher than normal and called down to the city to ask why, and only then did they share thut a horn was sounded and a group of people went by the sound recorder talking thus shooting the high up. There were no remcarks on the graph and the average decibel reading the city E-muiled us stating what happen to drive the high so high therefore whom ever they show these reading to would not know that it wasn't Augusta that caused the reading to be 1 decibel above. I have zero trust in the head Code enforcement Officer, as he is determined to and will go to any length to stop the music. I have been in the home of one of the long time complainers and could not hear the music inside his house. Could hear u faint sound that there was music somewhere when I went out on his patio, don't know anyone that sits out on their patio at 10:00 in the winter and if you wanted to read your book out their you could have. I have shared this information with code officers and others many times yet the complainers rave about how nice the code officers are and yet the officers have not gone inside anyone's house. I am open to any suggestions that council might offer and make any reasonable changes to keep my CUP. I would like to resolve this with council as I am having a hard time with my attorney he is talking with the city's new attorney and arranging trc►il dates and i feel both attorney's are chasing the dollar from the city and me. I'm sure there must be some way we can resolve this without a trial. Please advise, Sincerely Denise Roberge Michelson, Wilma From: Michelson, Wilma Sent: Wednesday, May 07, 2008 4:30 PM To: 'denise@deniseroberge.com' Subject: FW: Denise—I did receive an email from you on Apr. 16 with no attachment. I first confirmed receipt per you phone request, and after I realized there was no attachment, I sent you this one. From: Michelson, Wilma Sent: Wednesday, April 16, 2008 1:59 PM To: 'Denise Roberge' Subject: RE: FYI—there was nothing attached. I assumed this was just a test. From: Denise Roberge [mailto:denise@deniseroberge.com] Sent: Wednesday, April 16, 2008 1:09 PM To: CityhallMail Subject: i Michelson, Wilma From: Michelson, Wilma Sent: Wednesday, April 16, 2008 1:59 PM To: 'Denise Roberge' Subject: RE: FYI—there was nothing attached. I assumed this was just a test. From: Denise Roberge [mailto:denise@deniseroberge.com] Sent: Wednesday, April 16, 2008 1:09 PM To: CiryhallMail Subject: 1 Michelson, Wilma From: Michelson, Wilma Sent: Wednesday, April 16, 2008 1:10 PM To: 'Denise Roberge' Subject: RE: Receipt confirmed From: Denise Roberge [mailto:denise@deniseroberge.com] Sent: Wednesday, April 16, 2008 1:09 PM To: CityhallMail Subject: 1 Michelson, Wilma From: Denise Roberge [denise@deniseroberge.com] Sent: Wednesday, April 16, 2008 1:09 PM To: CityhallMail 1 � ..� - �rz <��r�{C:� � ,`� i..('7 z�� ,�F`t � � � _ ,�r ��,� ��„ , P�i �� I I � �.,�,.+i ��„-� t $ � C��C��, s To Honorable Mayor and the City Council of Palm Desert: I am writing this letter to you as I will not be able to attend the meeting on May 15th regardingAugusta Restaurant as I will be out of town. I have been following the sequence of events regarding the music at a distance but with interest and felt that it was time to speak up. I can only imagine the difficulty of your position of having to weigh what is the correct choice, the inevitable frustration of people complaining and a business owner fighting to keep the music playing. I think it would be easy to say, well your business will be fine without the music and that will stop the complaining. But I'd like you to consider the fact that people tend to not fight for things they take forgranted until itgets to a boiling point because they believe it will all work out. Palm Desert has grown from a sleepy little vacation town to a thriving, vibrant and wonderful place to live and work under your direction. The changes that you've been instrumental in coordinating have been sometimes easJ and sometimes full of discord. EZ Paseo has grown and continues to grow and be developecl into a beautiful "downtown"... and I can't think of a better place to have night life than in our downtown. It is the one aspect of our beautiful City that needs developing...I have often thought that with some reason to be on El Paseo at night, the stores might stay open longer and wouldn't it be great to see people milling around after dark... �� e� <`� � �� ,� Q �,, ^��'� � ��` �� `�Q��b �� Augusta has and continues to be a vibrant, classy and beautiful Restaurant and Bar that people genuinely enjoy...they are in a commercial zone and are making efforts and I am sure would continue to make efforts to reduce the sound levels...I think they deserve the right to play music for the enjoyment of many as much or more than the rights of a few people who have chosen to live near a commercial district. I wonder if it wouldn't be possible to provide some redevelopment funds to improve those places that are closest to the music with new widows, or some other mitigation options in lieu of just shutting down the music? I do believe that there are options available that should at least be considered. I respectfully understand your dilemma, but ask that you please furtlter the lifestyle options of Palm Desert and let the music continue and continue to make Palm Desert a fun and exciting place to live and visit. Respec ull� Submitted, �� i E� ..... ....__ K'isti ' a� son Kristi W. Hanson, Architect 72-185 Painters Path, Suite A � Palm Desert, California 92260 (760) 776-4068 kristi@kristihanson.com Klassen, Rachelle From: Michelson, Wilma Sent: Monday, May 12, 2008 2:25 PM To: Klassen, Racheile Subject: FW: Help Save the Outdoor Music at Augusta Restaurant From: Denise Roberge [mailto:denise@deniseroberge.com] Sent: Thursday, May 08, 2008 10:47 AM To: CityhallMail Subject: FW: Help Save the Outdoor Music at Augusta Restaurant From: Tiffany Windsor Sent: Thursday, May 08, 2008 10:11 AM To: Denise Roberge Subject: FW: Help Save the Outdoor Music at Augusta Restaurant From: JAWmson46@aol.com [mailto:JAWmson46@aol.com] Sent: Wednesday, May 07, 2008 5:38 PM To: Tiffany Windsor Subject: Re: Help Save the Outdoor Music at Augusta Restaurant Unfortunately, we have already left the desert for the summer. However, we definitely support you in having the outdoor music at Augusta Restaurant. The music is truly the main reason we come to the restaurant. We love the food too, but Raphael and the others are so fantastic. They really make Augusta s0000 special. Judy & JD Williamson Wondering what's for Dinner Tonight? Get new twists on family favorites at AOL Food. 1 �i~ances�ar�t�a,�an�n� �� i�� ro� /�Cc,�w �,,�,e��' Gn�.r.�.r,P. � �t`f�.EG �,,,(,�,� ,�'.c�„C,rst� �, �'�3� o ► � S� c.� a- �►��,e.�- ' ' � /ke a.wc C;�`r`' 4 �`�'/�' �� • �n�� `�� +'�1.�, � crr�.� �'�G T�+�'' ,�i�-C- �'`'�' . . � P , � � , ,'�/ � '�'•�l /, .--- � �i Q��/�V EC'� �� Q�/?i ��I��'�"� `""�'� �'�" P� �-�� . � � � �� ,�,�.,,,�- �- ' �. � �-�'�� p�- �'' ��, � � � ' ,�� n�,►,r,� � yti,,� � G��G�� r�� ' i�,�Cu�t ��ti�i�r , � ' L�.�. ,` ,A.;,�r. ,� �t�. �r,�a. , A . �� 'r�e.�. ��- , �c'� -ra„� � ,�,` � ��`' r-�� - � ��. �•�, �-.� �.,r.� �. �� o �,� � ,�r � �. � �' � � � � c. �r /u��' � r.,�-u, ,� G,r.� y� c,e�l.Z ° �� • . (� t.��iv �� . � _ p � . �� . _ �7- / 3 � � /�-e��. �u�— o� �� PA.e� ,�,�.� � . 9� �o � z� ��1�� ;� , � , ,J_::r.� � + y ��.�.�(; � r,;.�� .:-� 1 �.; �� ,�.��-f t �' 'v Klassen, Rachelle From: Michelson, Wilma Sent: Tuesday, May 13, 2008 8:27 AM To: Klassen, Rachelle Subject: FW: letter to members of City Council From: Michelson, Wilma Sent: Tuesday, May 13, 2008 8:27 AM To: 'Denise Roberge' Subject: RE: letter to members of City Council Ms. Roberge—I have no explanation either other than maybe computer error. If you will remember last week I forwarded you my emails received from you as well as mine sent informing you there was no attachment. In any case, the City Council does have your letter now and it will be included in the agenda for Thurs. as a matter of public record. From: Denise Roberge [mailto:denise@deniseroberge.com] Sent: Monday, May 12, 2008 3:05 PM To: Michelson, Wilma Subject: FW: letter to members of City Council Ms. Michelson: Again I am forwarding you this from my sent E-mail file and it shows the attached �ocument. I don't have any other explanation as my computer shows everything being sent. Sincerely Denise Roberge From: Denise Roberge Sent: Wednesday, April 16, 2008 1:17 PM To: cityhall@ci.palm-desert.ca.us Subject: letter to members of City Council Please distribute this to Council Members. Thank you Denise Roberge i Klassen, Rachelle From: Michelson, Wilma Sent: Wednesday, May 14, 2008 12:54 PM '�-��° - " �s �� -: To: Klassen, Rachelle h �.��r;��,{;y�• � Subject: FW: Letter to Jim Ferguson � ` � ,,, r ��..' � {'��'i:•�9�� s°��;��- 1,5:0� .��,..w � .�:,�.�,.;��:>a�:� -----Original Message----- From: Ron & Bev Buries [mailto:uncndunc@verizon.net] Sent: Wednesday, May 14, 2008 11:24 AM To: CityhallMail Subject: Letter to ]im Ferguson Dear Mr. Ferguson, I wrote you on February 26th following the Planning Commission Meeting (7an. 15, 2008) re: the issue of Augusta Restaurant and my concerns that this issue was again going to be allowed to be swept under the proverbial rug. I did not receive a response call to indicate that you had received my correspondence. I know that you are very busy and yet I know that you are a champion of our neighborhoods and their residents. Unless you are a resident of this area you can have no idea what levels and types of music we have been subjected to emanating from Augusta Restaurant over the years. We have had residence in the valley for over 23 years with the past 7 of them being at 45-831 Mountain View, PD. For that entire time, I have had to call the Sheriff to request response to the noise coming from Augusta; most of those events were followed up with a call to the Code Enforcement. Our home is one of the actual monitor sites noted in the Planning Commission Meeting cited above. This issue has gone on far too long with far too little change. Historically, Augusta opens in the fall with it's loud music, the complaints come from the community (and apparently citations from Code Enforcement) but the music continues through the spring with promises of remedying the issue over the summer. I know for a fact that we were addressing this very issue last year at this time and it was followed in the Desert Sun with numerous articles suggesting that it would be remedied over the summer. Well, here we are again, the end of spring. . .please don't let this cycle continue. It is time to END the "conditional use" permit and END the noise nuisance generated by Augusta. I know that Denise Roberge has contributed to many City Councilmember campaigns and I am hopeful that she will not be allowed to consider that these contributions will be ones garnering her special favor in this instance. Denise Roberge has little concern for the community at large. Her statement from the Planning Commission meeting minutes (p. 16) that "Perhaps now the nuisance is the people making the phone calls." suggests how much concern she has for our community. We live here all of the time, we are not transient individuals who will come and enjoy a f ree beer in exchange for a signature on a petition. We have a right to enjoy a reasonable level of respect from our neighbors whether commercial or residential. If I were a neighbor of yours who had continuously subjected you to this ongoing level of disrespect I know that you would expect your City Councilmembers to do the right thing. IT IS TIME! ! ! This has been swept under the rug far too long and it is now time to make it right. Don't play the "in the fall it will be remedied game" any longer. Please accept the Planning Commission Meeting recommendation (]an. 15, 2008) that the permit for outdoor music be discontinued entirely. Thank You for your consideration of this matter. Sincerely, Beverly Buries 45-831 Mountain View Av. 1 Palm Desert, CA. 92845 760-346-0472 cell 714-287-0944 2