Study shows Woody’s Wharf noise levels exceed city code standards

A developer building waterfront shops and condos adjacent to Woody’s Wharf is asking the Newport Beach City Council to take another look at their proposed agreement with the Balboa Peninsula restaurant, alleging that the noise that emanates from the business and its patrons could adversely impact the project.

Allen Matkins Leck Gamble Mallory & Natsis LLP, an Irvine-based law firm representing the developer NPB Marina LLC, which owns the parcel of land directly north of Woody’s on Newport Boulevard, commissioned a noise study over three days in September after learning that previous sound analyses did not take their client’s property into account, according to a letter.

“My client is investing tens of millions of dollars in a first-class mixed-use development. The major code violation by Woody’s Wharf, evidenced by the acoustical report, needs to be abated promptly,” attorney Gary McKitterick wrote in his Sept. 23 letter to the council. “We are supportive of bars and restaurants in the area, provided they operate under maximum compliance with noise standards and policies.”

Steve Mills, manager of Newport Bay Marina, said, “We have made the City aware of an existing noise problem that should have a mitigation plan as part of the conditions of approval before the City allows an expansion of the intensity of use that will exacerbate the noise level by allowing extended hours of operation.

“It is very reasonable and best for all involved to address now how Woody’s plans to mitigate noise to be in compliance”

NPB Marina LLC is constructing a 36,000-square-foot commercial, retail and residential mixed-use development known as the Newport Bay Marina. First approved by the council in 2006, the development replaces a collection of run-down structures where a World War II shipyard was once housed.

According to the study, conducted by RS Acoustics Inc., the nighttime noise generated by Woody’s steadily increased after 10 p.m. until reaching a peak from about 11:30 p.m. to midnight.

The report indicates that noise levels at locations less than 100 feet from the restaurant, where 12 residences are going to be built, exceeded city noise code standards by between 8 and 15 decibels during the tests, which were conducted Thursday through Saturday. The report also indicates that groups gathered outside the restaurant and music were responsible for much of the significant noise.

Previous noise studies commissioned by Woody’s Wharf and the city in 2012 and 2013 have looked at the potential noise impact from the restaurant to residences on the north side of American Junkie, which is directly next to Woody’s. After analyzing each of those studies, city staff concluded that Woody’s did not contribute to the total noise environment on Newport Boulevard, according to city documents.

Mark Serventi, one of the restaurant’s owners, said NPB Marina’s noise study was conducted before a 34-foot wall was built, separating the development from Woody’s.

The wall, he said, is likely to muffle any noise from the restaurant.

“The previous noise studies pointed out that ambient noise is much louder than anything from our business,” Serventi said. “We have the noise under control.”

The City Council is expected to consider changes to Woody’s conditional use permit during its Oct. 13 meeting that would allow it to open a half-hour earlier each day and enable patrons to use the adjacent boat dock ramp to drink, eat and smoke until 8 p.m., which was previously not permitted.

Woody’s currently is allowed to have dancing inside the restaurant on Fridays and Saturdays and use the patio until 2 a.m. on those nights and early mornings. The council’s decision on the permit would not affect that.

The council will also consider allowing dancing inside the restaurant and extending outdoor patio hours from 11 p.m to 2 a.m. on Thursday nights and up to 12 additional nights per year.

The item was continued from the meeting last month because Councilman Marshall “Duffy” Duffield was absent, according to a city spokesperson. City staff had recommended the council approve the changes.

It is unclear how the newly submitted study could impact the staff’s recommendation on the issue. Community Development Director Kim Brandt said the staff report will not be finalized until Oct. 9.

“We’re revising it to include additional information we received,” she said.

The council’s decision on the issue could end the roughly two-year legal dispute between the restaurant and the city, which began in 2013 after the City Council denied permits for the restaurant to offer dancing and extended patio hours, overturning the Planning Commission’s prior approval.

Woody’s Wharf sought to overturn the council’s action in Orange County Superior Court but was denied by Judge Derek Hunt in May 2014.

Woody’s attorney, Roger Diamond, appealed Hunt’s decision, and in January, a three-judge panel of California’s 4th District Court of Appeal reversed the ruling, allowing patrons to dance at the restaurant.

Several months later, the council voted to petition the state Supreme Court to review the appeals court decision, but a week later withdrew the request for unspecified reasons.

Shortly after, Serventi said, city leaders approached him to negotiate a settlement.

Mayor Ed Selich, who cast the sole dissenting vote in 2013 when the rest of the council — which included four members who are no longer on the panel — voted to deny Woody’s permit, warned his colleagues at the time that the city likely wouldn’t win a challenge.

“I don’t gloat about it,” he said. “I wish I hadn’t been right. We need to wrap this up one way or another instead of having continued litigation.”