HomeMy WebLinkAbout5.0_Ho Sum Bistro_PA2019-001CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
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SUBJECT: Ho Sum Bistro (PA2019-001)
Conditional Use Permit No. UP2019-002
SITE LOCATION: 3112 Newport Boulevard
APPLICANT: Willie-Nilly Inc.
OWNER: Pacific Terrace Partners
June 20, 2019
Agenda Item No. 5
PLANNER: Liz Westmoreland, Assistant Planner
949-644-3234, Iestmoreland@newportbeachca.gov
PROJECT SUMMARY
The applicant requests a conditional use permit to upgrade the current Alcoholic Beverage
Control (ABC) License Type from a Type 41 (On -Sale Beer & Wine — Eating Place) to a
Type 47 (On -Sale General — Eating Place) for an existing restaurant. The second change is
to allow the full use of an interior dining room that currently is restricted to evening hours.
The applicant requests the continuation of a previously approved parking reduction, and
lastly, the hours of operation would be reduced. The subject Use Permit, if approved, would
replace a previously approved Use Permit No. UP3110 for the operation of the restaurant
and UP3110 would be rescinded.
RECOMMENDATION
1) Conduct a public hearing;
2) Find this project exempt from the California Environmental Quality Act (CEQA)
pursuant to Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines,
because it has no potential to have a significant effect on the environment; and
3) Adopt Resolution No. PC2019-020 approving Conditional Use Permit UP2019-002
(PA2019-001) (Attachment No. PC 1) and rescinding Use Permit No. UP3110.
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VICINITY MAP
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GENERAL PLAN
ZONING
d
•
LOCATION
GENERAL PLAN
ZONING
CURRENT USE
ON -SITE
CV (Visitor Serving
Commercial)
CV (Commercial Visitor-
Serving)
Ho Sum Bistro Restaurant
NORTH
CV
11
CV
Retail, Sabatino's, Lido House
Hotel
SOUTH
CV
CV
Ocean Restaurant/Bar
MU-CV/15'h St (Mixed -
EAST
MU-H4 (Mixed Use
Use Cannery Village/15'h
Personal services uses, offices,
Horizontal)
St)
mixed -use buildings
WEST
CN (Neighborhood
CN (Commercial
The Landing Shopping Center
Commercial)
Neighborhood)
3
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INTRODUCTION
Project Setting
The existing restaurant is located on the Newport Beach Peninsula along Newport
Boulevard near 32"d Street. The area includes retail uses, the Lido House Hotel, The
Landing shopping center, mixed -use buildings, and eating and drinking establishments.
The nearest residential uses are located approximately 150 feet east of the project site
along 32"d Street in a mixed use building. Additionally, residential uses are located west
along Marcus Avenue and are approximately 290 feet from the existing restaurant.
Background
The subject property has accommodated various types of eating and drinking
establishments for over 50 years. A coffee shop with a beer and wine license was
approved in 1959, prior to the requirement for off-street parking and a use permit.
In 1984, Use Permit No. UP3110 was approved to modify operations of the existing take-
out restaurant and to reduce the required parking by 21 parking spaces in recognition of
the existing legally nonconforming parking conditions from the 1960s.
In 1985, UP3110 was amended to authorize the construction of a second floor office and
storage area. This amended use permit waived the additional parking required for the
addition, resulting in a cumulative parking waiver of 29 parking spaces. Parking
requirements at the time were based on a rate of one space per 50 square feet of gross
floor area with additional spaces required for employees.
In 1991, UP3110 was amended for a second time, to allow conversion of the upstairs
office and storage area into a dining area for use after 6:00 p.m. daily, when the parking
demands are lower on the peninsula. The use permit continued the existing parking
reduction of 29 parking spaces and no new spaces were required by the Zoning Code at
that time. A maximum of three tables and 12 chairs were permitted within the upstairs
dining area.
Project Description
The applicant requests a conditional use permit to change the existing fast food (take-out
service), eating and drinking establishment to a new food service, eating and drinking
establishment. In conjunction with this change, the applicant requests to upgrade the current
Alcoholic Beverage Control (ABC) License Type from a Type 41 (On -Sale Beer & Wine —
Eating Place) to a Type 47 (On -Sale General — Eating Place). A Type 47 license would allow
for the addition of on -sale liquor.
The proposed hours of operation would be 11:00 am to 10:00 pm Sunday through
Thursday, and 11:00 am to 11:00 pm on Friday and Saturday, whereas the existing use
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permit currently allows a closing time of midnight on weeknights and 1:00 a.m. on
weekends. The applicant also requests full use of the upstairs dining area during the
daytime, where the existing use permit prohibits use of the upstairs dining area prior to
6:00 p.m. No live entertainment or dancing is authorized by the existing use permit and it
is not proposed in conjunction with the proposed changes to the restaurant.
DISCUSSION
General Plan
The General Plan designates the site as Visitor Serving Commercial (CV), which is
intended to provide for services to primarily serve visitors to the City of Newport Beach.
The existing restaurant is located within the established commercial area along Newport
Boulevard, which provides goods and services to visitors and residents alike, consistent
with the CV land use designation. The continued operation of the existing restaurant will
serve visitors and residents of the area. Expanding the existing upstairs dining area to
accommodate more visitors in the daytime will reduce wait times, allow more room for
carry -out orders, and provide additional dining opportunities. The upgraded license type
will allow the restaurant to provide an enhanced menu of alcoholic beverages to their
patrons.
Local Coastal Program
The subject property is located within the coastal zone. The Coastal Land Use Plan
category is CV -A (Visitor Serving Commercial — [0.0-0.75 FAR]) and it is located within
the CV (Commercial Visitor -Serving) Coastal Zone District. The aforementioned land use
plan category and coastal zone district are intended to provide for areas appropriate for
accommodations, goods, and services to serve primarily visitors to the City. The food
service use would serve visitors to the City by providing an amenity near recreational
opportunities and accommodations, such as the beach and the Lido House Hotel.
A coastal development permit is not required because there is no physical expansion or
intensification of use. The change in the ABC license type to allow liquor sales is ancillary
to the existing restaurant operations. No changes or expansion to the existing upstairs dining
area involving construction are proposed. The change in how the use is defined from a take-
out restaurant to food service, eating and drinking establishment results in a lower parking
demand than the current use permit. Lastly, the permitted hours of operation of the
establishment would be reduced.
Zoning Code
The site is located within the Commercial Visitor -Serving (CV) Zoning District which is
intended to provide for areas appropriate for accommodations, goods, and services
intended to serve primarily visitors to the City. Eating and drinking establishments
(including alcohol) are allowed uses, subject to the approval of a use permit.
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Alcohol Service
Alcohol service is not a new privilege for the restaurant, but the service of liquor is new.
No alcohol -related calls for service were reported related to the business in the last
reporting period. The change in ABC license type to allow service of liquor is acceptable
to the Police Department with the inclusion of appropriate conditions (Attachment No. PC
3). Updating the conditional use permit will allow staff to consolidate all historical use
permits and create a simplified record to aid in enforcement. The subject use permit will
be modernized to meet current standards and to align with ABC conditions. The existing
permitted hours of operation will be reduced from a closing time of 1:00 a.m. on
weekends, to 10:00 p.m. instead (i.e. late hours will no longer be permitted). Reducing
the hours of operation permitted by the existing use permit will mitigate any potential
impacts related to the service of liquor on -site.
Parking Requirements
When Use Permit No. UP3110 was amended in 1985, the use was classified as a take-
out restaurant requiring one space for every 50 square feet of gross floor area. As noted,
in 1991, the City granted a 29-space parking waiver with an amendment to the use permit.
Five parking spaces are presently provided on -site.
The current Zoning Code classifies this use as a full service restaurant (food service,
eating and drinking establishment) and parking is required at a rate of one parking space
per 30 to 50 square feet (sf) of net public area (NPA), as determined by the use permit.
In this case, a parking rate of one space per 40 sf of NPA is appropriate for the proposed
use based on several physical design and operational characteristics:
• Only three tables (15 seats) included on the first floor, and three tables (12 seats)
on the second floor, the remaining six seats are located at the existing first floor
counter;
• The net public area includes a waiting area, which does not have seating for dining;
• No outdoor dining is proposed;
• No live entertainment or dancing;
• Hours of operation are limited to lunch and dinner (no early or late hours);
• Not a destination use, most patrons will already be visiting Mc Fadden Square, the
beach, and other nearby amenities; and
• Local residents can walk to the restaurant.
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Table 1- Summary of Existing vs. Proposed Parking Requirements
Existing (UP3110A)
Proposed (UP2019-002)
Use Type
Food Service, Eating and
Classification
Take -Out Restaurant
drinking establishment (no late
hours
Seats
43 seats (per plans)
33 seats
Methodology for
. 1 space per 50 sf of gross
• 1 space per 30-50 square
Parking Demand
floor area plus 1 space for
feet (sf) of NPA
each employee
• 1 space per 40 sf
• 1,518 sf gross floor area
(recommended)
dl
• 3 employees
• 501 sf NPA (includes both
floors
Parking Spaces
34 spaces
13 spaces
Required
Parking Provided
5 spaces
5 spaces
(1 space may be lost due to
10
potential disabled parking
space modifications
Parking Spaces
29 spaces
8 spaces
Waived
Summary
Based on Zoning Code changes, the proposed use will
require 21 fewer spaces than the required existing use
permit UP3110A .
Parking Reduction
As previously discussed, the project provides five parking spaces on -site, resulting in a
deficiency of eight spaces. Because the previous parking reductions were for 29 parking
spaces, the overall parking requirement is reduced by 21 spaces due to changes in the
Zoning Code and no additional parking is required.
Staff believes the continuation of historic parking reductions remains appropriate for the
restaurant, even with the use of the upstairs dining area during the daytime because the
overall seating count has been reduced from the previously approved plan. In addition, in
keeping with historical conditions, walk-up traffic is common in this area of the peninsula.
Visitors to this area are typically going to the beach or bay and have multiple destinations
on the peninsula, such as recreation, shopping, and dining. The restaurant is small with
only 501 square feet of NPA, and would not serve as a destination use that would
generate a high demand for parking. On -street parking is available throughout this area
and has proven to be sufficient to support the existing restaurant and nearby businesses.
Additionally, the Lido House Hotel is located across 32nd street, and the restaurant would
serve as a nearby amenity for travelers.
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Further, the upstairs dining area contains only 202 square feet of NPA and
accommodates only 12 seats. Thus, parking impacts related to the use of the upstairs
dining area during the daytime (prior to 6:00 p.m.) would be negligible.
Parking Lot Configuration
The existing parking lot in the rear of the property contains five parking spaces including
one accessible parking space. The tandem configuration of the existing accessible space
is problematic because the accessible space could be obstructed by a vehicle parked in
tandem. Staff is recommending that the parking lot configuration be altered as necessary
to more fully comply with applicable requirements for disabled access parking stalls. The
modified configuration would also provide a safer and more convenient route from the
alley to the accessible entrance in the rear of the establishment as there is no accessible
entrance in the front of the building along Newport Boulevard.
A condition of approval has been included in this use permit to require the owner/operator
to implement this change. The final version of the striping plan shall be approved by the
Community Development Director, Public Works, and the Building Division. It should be
noted that restriping may result in the loss of one parking space. Lost parking spaces due
to compliance with American Disabilities Act (ADA) requirements is authorized pursuant
to Municipal Code Section 20.40.110.A without discretionary review.
Trash Enclosure
The Zoning Code requires that trash be stored either inside of the building or within a
trash enclosure that is screened from view of the street or alley. Trash is stored in a
dumpster located to the rear of the building that lacks a screening enclosure. As part of
the conditions of approval for the project, a trash enclosure that adequately screens and
covers the trash shall be provided outside of the clear dimensions, in a design approved
by the Planning Division. If the trash enclosure cannot be physically accommodated
based on Public Works and Building requirements, then the Community Development
Director can administratively modify the screening requirements pursuant to Municipal
Code Section 20.30.120.B.2 to achieve a design that meets the intent of the code to the
maximum extent feasible.
Conditional Use Permit Findings
Pursuant to Section 20.52.020.E (Findings and Decision) of the Newport Beach Municipal
Code, the Planning Commission must make the following findings in order to approve a
conditional use permit:
1. The use is consistent with the General Plan and any applicable specific plan;
2. The use is allowed within the applicable zoning district and complies with all other
applicable provisions of this Zoning Code and the Municipal Code;
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3. The design, location, size, and operating characteristics of the use are compatible
with the allowed uses in the vicinity;
4. The site is physically suitable in terms of design, location, shape, size, operating
characteristics, and the provision of public and emergency vehicle (e.g., fire and
medical) access and public services and utilities; and
5. Operation of the use at the location proposed would not be detrimental to the
harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise
constitute a hazard to the public convenience, health, interest, safety, or general
welfare of persons residing or working in the neighborhood of the proposed use.
As demonstrated in the draft resolution (Attachment No. PC 1), staff believes the findings
for approval can be made. The existing restaurant is consistent with the CV designation
as it is intended to provide service to not only visitors, but also residents within the
immediate neighborhood and surrounding area. The property has been utilized for food
service uses since the 1960s and has proven to be compatible with the neighborhood. As
conditioned, the restaurant is expected to operate in an effective manner that is
compatible with the surrounding commercial and residential uses nearby.
As conditioned, the trash enclosure, if feasible, will be located outside of the required
parking dimensions and path of travel for the accessible space. The trash enclosure is
intended to provide screening of trash from the alley and to cover bins to improve water
quality during rain events. The project is also conditioned to reconfigure the rear of the
parking lot to allow the accessible space to be independently and directly accessible via
the alley.
Upgrading the existing ABC license type would support the visitor and resident serving
use, and would not result in any negative impacts to the surrounding commercial and
mixed -use properties. The voluntary elimination of late hours of operation would alleviate
any potential concerns related to compatibility and provide a net benefit to the
neighborhood. The Police Department has reviewed the proposal, provided operating
conditions of approval, and has no objection to the change in ABC license for the existing
restaurant.
Re-classifying the restaurant using current Zoning Code definitions results in a net
reduction in required parking spaces. The proposed restaurant requires a parking
reduction of eight parking spaces, instead of the historical parking reduction of 29 spaces.
Further, the restaurant is small with only 501 square feet of net public area. Of this, only
220 square feet of NPA is allocated to the second floor. Thus, parking impacts related to
the use of the upstairs dining area during the daytime (prior to 6:00 p.m.) would be
negligible. The overall parking demand for the restaurant is approximately 40 percent of
the demand cited in the existing use permits as a take-out restaurant. Lastly, staff
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anticipates that many of the patrons would be visitors to the area, with multiple
destinations on the peninsula and walk-up traffic in this area is common.
Alternatives
1. The Planning Commission may require changes to the project to alleviate any
concerns related to the design or the ability to make the required findings. If the
changes are substantial, the item should be continued to a future meeting to allow
the applicant to make the necessary adjustments and to allow staff to prepare a
revised resolution incorporating new findings and/or conditions.
2. If the Planning Commission believes that there are insufficient facts to support the
findings for approval, the Planning Commission may deny the application and provide
facts in support of denial to be included in the attached draft resolution for denial
(Attachment No. PC 2).
Environmental Review
This project is exempt from the California Environmental Quality Act (CEQA) pursuant to
Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines, California Code
of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect
on the environment.
The Class 1 exemption includes the ongoing use of existing buildings where there is
negligible or no expansion of use. The proposed project involves the continued operation
of an existing restaurant use and no construction is proposed. The project includes a
modified ABC License and use of the upstairs dining area throughout the day and evening
hours.
1=616704r UMM
Notice of this hearing was published in the Daily Pilot, mailed to all owners of property
within 300 feet of the boundaries of the site (excluding intervening rights -of -way and
waterways) including the applicant and posted on the subject property at least 10 days
before the scheduled meeting, consistent with the provisions of the Municipal Code.
Additionally, the item appeared on the agenda for this meeting, which was posted at City
Hall and on the City website.
Prepared by:
Liz We moreland, Assistant Planner
Submitted by:
Jim Campbell, Deputy Director
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ATTACHMENTS
PC 1 Draft Resolution with Findings and Conditions
PC 2 Draft Resolution for Denial
PC 3 Police Department Memorandum
PC 4 Project Plans
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Attachment No. PC 1
Draft Resolution with Findings and
Conditions
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m
RESOLUTION NO. PC2019-020
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF NEWPORT BEACH, CALIFORNIA APPROVING
CONDITIONAL USE PERMIT NO. UP2019-002 FOR A FOOD
SERVICE, EATING AND DRINKING ESTABLISHMENT WITH A
TYPE 47 ALCOHOLIC BEVERAGE CONTROL (ABC) LICENSE
LOCATED AT 3112 NEWPORT BOULEVARD (PA2019-001)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
An application was filed by Willie-Nilly Inc. ("Applicant") with respect to property located at
3112 Newport Boulevard, and legally described as Lot 2, Block 431, of the Lancasters
Addition Tract ("Property') requesting approval of a conditional use permit.
2. The Applicant requests a conditional use permit to change the existing fast food (take-out
service), eating and drinking establishment to a new food service, eating and drinking
establishment. In conjunction with this change, the Applicant requests to upgrade the
current ABC License Type from a Type 41 (On -Sale Beer & Wine — Eating Place) to a
Type 47 (On -Sale General — Eating Place), allow use of the upstairs dining area throughout
the day, and reduce the hours of operation to exclude late hours (i.e. no operations after
11:00 p.m.) ("Project"). The Applicant also requests a continuation of historical parking
reductions.
3. The Property is designated CV (Visitor Serving Commercial) by the General Plan Land
Use Element and is located within the CV (Commercial Visitor- Serving) Zoning District.
4. The Property is located within the coastal zone. The Coastal Land Use Plan category is
Visitor Serving Commercial (CV -A) — (0.0-0.75 FAR) and is located within the Commercial
Visitor -Serving (CV) Coastal Zone District.
5. A coastal development permit is not required because there is no physical expansion or
intensification of use. The change in the ABC license type to allow liquor sales is ancillary
to the existing restaurant operations. No changes or expansion to the existing upstairs
dining area are proposed. The change in use from a take-out restaurant to food service,
eating and drinking establishment results in a lower parking demand than current
requirements. Lastly, the permitted hours of operation of the establishment would be
reduced.
6. A public hearing was held on June 20th, 2019, in the Council Chambers at 100 Civic Center
Drive, Newport Beach. A notice of time, place and purpose of the hearing was given in
accordance with the Ralph M. Brown Act and Newport Beach Municipal Code ("NBMC").
Evidence, both written and oral, was presented to, and considered by, the Planning
Commission at this hearing.
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SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
This project is exempt from the California Environmental Quality Act ("CEQA") pursuant to
Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines, California Code
of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a
significant effect on the environment.
2. The Class 1 exemption includes the ongoing use of existing buildings where there is
negligible or no expansion of use. The proposed Project involves the continued
operation of an existing restaurant use and no construction is proposed. The Project
includes a modified ABC License and use of the upstairs dining area throughout the day
and evening hours.
SECTION 3. REQUIRED FINDINGS.
Conditional Use Permit Findings
In accordance with NBMC Section 20.52.020 (Conditional Use Permits and Minor Use
Permits), the following findings and facts in support of such findings are set forth:
Finding:
A. The use is consistent with the General Plan and any applicable specific plan;
Facts in Support of Finding:
The General Plan designates the Property as Visitor Serving Commercial (CV), which
is intended to provide for services to primarily serve visitors to the City of Newport
Beach. The continued operation of the existing restaurant will serve visitors and
residents of the area. Expanding the existing upstairs dining area to accommodate more
visitors in the daytime will reduce wait times and provide additional dining opportunities
to visitors.
2. The existing restaurant is located within the established commercial area along Newport
Boulevard, which provides goods and services to visitors and residents alike, consistent
with the CV land use designation.
3. The Property is not a part of a specific plan area.
Finding:
B. The use is allowed within the applicable zoning district and complies with all other
applicable provisions of this Zoning Code and the Municipal Code;
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Facts in Support of Finding:
1. The Property is located in Commercial Visitor -Serving (CV) Zoning District which is
intended to provide for areas appropriate for accommodations, goods, and services
intended to serve primarily visitors to the City. Eating and drinking establishments
(including alcohol) are allowed uses, subject to the approval of a use permit.
2. The Property has accommodated various types of eating and drinking establishments
for over 50 years. A coffee shop with a beer and wine license was approved in 1959,
prior to the requirement for off-street parking and a use permit. In 1984, Use Permit No.
UP3110 was approved to modify operations of the existing take-out restaurant,
reconfigure the rear parking lot, and formally waive 21 parking spaces consistent with
the nonconforming parking conditions from the 1960s.
3. In 1985, UP3110 was amended to authorize the construction of a second floor office
and storage area. This amended use permit waived the additional parking required for
the addition, resulting in a cumulative parking waiver of 29 parking spaces. In 1991,
UP3110 was amended a second time to allow conversion of the upstairs office and
storage area into a seating area for use after 6:00 p.m. daily, when the parking demands
are lower on the peninsula. A maximum of three tables and 12 chairs were permitted
within the upstairs dining area.
4. The property is nonconforming due to having only five spaces available on -site, where
34 spaces were previously required as a take-out restaurant. The existing establishment
is required to park at a rate of one space per 50 square feet of gross floor area (1,518
square feet) plus one space per employee (three employees), for a total of 34 spaces.
Five spaces were provided on -site and 29 spaces were waived in conjunction with the
1985 and 1991 amendments to UP3110.
5. Under current parking requirements for a food service, eating and drinking
establishment, parking is required at a rate of one parking space per 30 to 50 square
feet (sf) of net public area (NPA), as determined by a use permit. In this case, a parking
rate of one space per 40 sf of NPA is appropriate for the proposed use based on several
physical design and operational characteristics. For example, there are only three tables
included on the first floor and three tables on the second floor, with the remaining six
seats located at the existing counter. Further, the net public area includes a waiting area,
which does not allow for seating and dining. The Project does not include any outdoor
dining and is conditioned to prohibit live entertainment and dancing. Hours of operation
are limited to lunch and dinner, with no early or late hours. Lastly, the restaurant would
not be considered a destination use, resulting in a lower parking demand. Most
restaurant patrons in this area are already visiting McFadden Square, the beach, and
other nearby amenities and will be walking to the restaurant. Local residents in the area
will also likely be walking to the restaurant.
6. With an NPA of 501 square feet and a parking rate of one space per 40 square feet of
NPA, 13 parking spaces are required to serve the restaurant under current standards.
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With the five parking spaces provided on -site, the resulting deficiency in parking is
reduced from 29 spaces to eight spaces. Therefore, no additional parking is required.
7. The Public Works Department has reviewed the existing design and configuration of
parking spaces and has no objections to maintaining the existing nonconforming width
of the parking spaces (8 feet 4 inches is provided, whereas 8 feet 6 inches is required).
A condition of approval is included to maintain the existing clear dimensions of the
parking spaces on -site. Any future changes to the parking lot configuration would require
review and approval by the Planning and Building Divisions, as well as the Public Works
Department.
Finding:
C. The design, location, size, and operating characteristics of the use are compatible with
the allowed uses in the vicinity;
Facts in Support of Finding:
1. The upgraded ABC License Type in conjunction with an established eating and drinking
place does not significantly change the operating characteristics of the existing
restaurant which has been operating since the 1960s and a coffee shop in the 1950s.
The Property has been accommodating an eating and/or drinking establishment with
beer and wine service since 1959. There have been no historical compatibility issues.
2. The Project is conditioned to prohibit the restaurant from operating as a bar, tavern, or
nightclub, thereby reducing potential impacts to the neighborhood. The reduced hours
of operations proposed by the Applicant would further reduce the possibility of the
restaurant impacting surrounding neighborhoods. The proposed hours of operation are
11:00 am to 10:00 pm Sunday through Thursday, and 11:00 am to 11:00 pm on Friday
and Saturday and no late hours are requested. Additionally, conditions are included to
prohibit amplified sound except background music (i.e. not audible from outside the
restaurant) and no live entertainment or dancing is allowed on the premises. Lastly, food
service from the regular menu shall be made available to patrons until closing.
3. The restaurant is small, with only 501 square feet of net public area. There is 299 square
feet of NPA on the ground floor and 202 square feet of NPA on the second floor. There
are approximately 33 seats in the restaurant. The small size of the restaurant would
reduce the likelihood of any potential impacts to the surrounding area.
4. The existing restaurant (with an upgraded license type and use of the upstairs dining
area during daytime hours) will be complementary to the other uses in the area. The
area includes retail uses, the Lido House Hotel, the Landing shopping center, mixed -
use buildings, eating and drinking establishments, and residential uses across Newport
Boulevard. The restaurant will contribute to making the area a viable commercial node
for the visitors and residents.
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5. The project has been conditioned to provide a trash enclosure outside of the clear
parking dimensions and accessible path of travel for the accessible parking space. The
trash enclosure will screen trash from the alley and improve water quality by covering
the top of the dumpster and/or trash bins. If a full trash enclosure is not feasible based
on the available space in the rear parking lot, then the Community Development Director
can administratively modify the screening requirements pursuant to NBMC Section
20.30.120.B.2 to achieve a design that meets the intent of the code to the maximum
extent feasible.
6. The existing accessible space is not directly and independently accessible from the
alley, reducing the functionality of this space. Therefore, a condition of approval has
been included to move this space to the rear of the property. If this modification results
in a loss of any parking spaces, the Community Development Director may
administratively waive the space(s) pursuant to NBMC Section 20.40.110.A.
Findin :
D. The site is physically suitable in terms of design, location, shape, size, operating
characteristics, and the provision of public and emergency vehicle (e.g., fire and
medical) access and public services and utilities.
Facts in Support of Finding:
1. The existing restaurant has proven to be physically suitable in terms of design, location,
shape, and size to support the use. The physical characteristics of the Property are not
changing with the addition of liquor service and use of the existing upstairs dining area
during the day. The Property has accommodated similar uses since the 1960s and has
proven to be physically suitable for the Project.
2. Four of the five parking spaces at the rear of the property are required to be maintained
free and clear for the parking of employees only. The existing tandem spaces are
acceptable if used by employees of the business, who are able coordinate and move
vehicles as needed. Employees typically arrive prior to and post business hours, and
remain on -site for most of the day or for long periods of time during shifts. The one
existing accessible space shall be utilized for customers or employees as needed,
subject to State and Federal Laws. The required trash enclosure has been conditioned
to be located outside of the required parking dimensions and path of travel for the one
accessible space.
3. Adequate public and emergency vehicle access, public services, and utilities are
provided for on -site. The continued use of the restaurant with a Type 47 ABC License
and full use of the upstairs dining area would not impact public services or utilities. The
Police Department has reviewed the proposed ABC License type change and is
comfortable with it based on the hours of operation and operational characteristics. The
Public Works Department and Life Safety Services (Fire) Division have reviewed the
application and have no concerns regarding the operation.
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Finding:
E. Operation of the use at the location proposed would not be detrimental to the
harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise
constitute a hazard to the public convenience, health, interest, safety, or general welfare
of persons residing or working in the neighborhood of the proposed use.
Facts in Support of Finding:
1. The project has been reviewed and includes conditions of approval to ensure that
potential conflicts with the surrounding land uses are minimized to the greatest extent
possible. Alcohol service is already authorized at the restaurant, only the addition of
liquor is new. No alcohol -related calls for service have been reported for the business in
2017 (the most recent data set). Additionally, the operator is required to take reasonable
steps to discourage and correct objectionable conditions that constitute a nuisance in
parking areas, sidewalks and areas surrounding the subject property and adjacent
properties during business hours, if directly related to the patrons of the establishment.
2. The restaurant will service the neighborhood by providing dining services as a public
convenience to visitors as well as residents to the surrounding area, which is the intent
of the CV land use designation. The service of alcohol will complement the principal use
of the facility and provide an economic opportunity for the property owner to maintain a
successful business in a way which best serves the community and visitors. The
restaurant will close by 11:00 p.m. and conditions of approval are included to ensure
that the business does not operate as a bar, lounge, or nightclub.
3. As conditioned, the owners, managers and employees selling alcohol are required to
undergo and successfully complete a certified training program in responsible methods
and skills for selling alcohol.
Off -Street Parking Reduction
Based on current parking requirements, the Property's parking deficit is reduced from 29
spaces to eight spaces. In accordance with NBMC Section 20.40.110 (Adjustments to Off -
Street Parking Requirements), off-street parking requirements may be reduced with the
approval of a conditional use permit in compliance with Section 20.52.020 (Conditional Use
Permits and Minor Use Permits) as follows:
F. The applicant has provided sufficient data, including a parking study if required by the
Director, to indicate that parking demand will be less than the required number of spaces
or that other parking is available (e.g., City parking lot located nearby, on -street parking
available, greater than normal walk in trade, mixed -use development); and
1. Historically, parking rates were based on the gross floor area of the restaurant as a take-
out use, resulting in a total need of 34 spaces. However, the current Zoning Code
requires a parking rate of one parking space per 30 to 50 square feet of net public area
as a food service use. The existing establishment contains 501 square feet of net public
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area. Therefore, using a moderate rate of one space per 40 square feet of NPA, 13
parking spaces are required by today's standards. The Property provides five parking
spaces on -site, resulting in a deficiency of eight spaces. Because the previous parking
reductions were for 29 parking spaces, the overall parking demand is reduced by 21
spaces due to changes in the Zoning Code and no additional parking is required.
2. The continuation of historical parking reductions remains appropriate for the restaurant,
even with the use of the upstairs dining area during the daytime because the overall
seating count has been reduced from the previously approved plan. In addition, in
keeping with historical conditions, walk-up traffic is common in this area of the peninsula.
Visitors to this area are typically going to the beach or bay and have multiple destinations
on the peninsula, such as recreation, shopping, and dining. The restaurant is small, and
would not serve as a destination use that would generate a high demand for parking.
On -street parking is available throughout this area and has proven to be sufficient to
support the existing restaurant and nearby businesses. Additionally, the Lido House
Hotel is located across 32°d Street, and the restaurant would serve as a nearby amenity
for travelers.
3. Further, the upstairs dining area contains only 202 square feet of NPA and
accommodates only 12 seats. Thus, parking impacts related to the use of the upstairs
dining area during the daytime (prior to 6:00 p.m.) would be negligible. The overall
parking demand for the restaurant is approximately 40 percent of the demand cited in
the existing use permits as a take-out restaurant.
Alcohol Sales Finding
In accordance with NBMC Section 20.48.030 (Alcohol Sales), a change in type of ABC license
requires the following finding in addition to the conditional use permit findings. The facts in
support of such finding is set forth:
Finding:
G. The use is consistent with the purpose and intent of NBMC Section 20.48.030 (Alcohol
Sales) of the Zoning Code.
Facts in Support of Finding:
In finding that the proposed use is consistent with NBMC Section 20.48.030 of the Zoning
Code, the following criteria must be considered:
i. The crime rate in the reporting district and adjacent reporting districts as compared to other
areas in the City.
1. The Property is located in Reporting District (RD) 15, which stretches from 371h Street
to 201h Street along the Newport Beach peninsula. The Police Department is required to
report offenses of Part One Crimes combined with all arrests for other crimes, both
felonies and misdemeanors (except traffic citations) to ABC. Part One Crimes are the
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eight most serious crimes defined by the FBI Uniform Crime Report: criminal homicide,
rape, robbery, aggravated assault, burglary, larceny -theft, auto theft, and arson. RD 15
is considered a high crime area as compared to other reporting districts in the City. The
RD 15 crime count is 670, which ranks first in the City at 401 percent over the citywide
crime count average of 134. Therefore, the area is found to have undue concentration.
In comparison, neighboring RD 13 is 64 percent above the citywide average, RD 16 is
42 percent higher, and RD 25 is 73 percent higher. The highest volume crime is assault,
and the highest volume arrest is public intoxication or drug -related offenses.
2. The Police Department has reviewed the proposal, provided operating conditions of
approval, and has no objection to the change in ABC license for the existing restaurant.
Alcohol is not new to this establishment, but the addition of liquor is a new privilege. The
active use permit allows the business to operate until as late as Monday through
Thursday and 1:00 a.m. on Friday and Sunday. The proposed use permit amendment
would reduce operating hours to no later than 11:00 p.m. The Applicant has offered to
reduce the hours of operation in the use permit to reflect the true operating
characteristics of the restaurant. In addition to reducing hours of operation, the proposed
use permit amendment would allow the conditions of approval to be updated to reflect
modern requirements and align with ABC License standards.
ii. The numbers of alcohol -related calls for service, crimes, or arrests in the reporting district
and in adjacent reporting districts.
1. The total number of alcohol -related calls for service, crimes, or arrests in RD 15 is
higher than neighboring reporting districts. DUI, public intoxication, and liquor law
violations make up 39 percent of arrests in RD 15. In comparison, the figures for
neighboring RD 13 is 33 percent, RD 16 is 24 percent, and RD 25 is 29 percent. RD 15
is expected to be higher than adjacent reporting districts based on the number of
commercial businesses such as restaurants and bars, and high volume of visitors to
the area. The hours of operation will be reduced to no longer include operations after
11:00 p.m. and the Police Department has no objection to this application.
2. According to the latest data set from 2017 (2018 statistics not available yet), there were
six dispatch events for the subject address, with only three of those events related to
the business. The three calls were not related to alcohol.
iii. The proximity of the establishment to residential zoning districts, day care centers,
hospitals, park and recreation facilities, places of worship, schools, other similar uses, and
any uses that attract minors.
1. The existing restaurant is located on Newport Boulevard near 32nd Street, which is
consistent with the General Plan designation, Visitor Serving Commercial (CV). The
area includes retail uses, the Lido House Hotel, The Landing shopping center, mixed -
use buildings, eating and drinking establishments, and residential uses located across
Newport Boulevard. The Property is not located in close proximity to any daycare
centers, hospitals, places of worship, schools, or similar uses that attract minors.
However, the restaurant is located approximately 1,200 feet from the beach and the
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area attracts a large number of visitors including minors. The nature of the commercial
area along Newport Boulevard is to provide goods and services, including eating and
drinking establishments, designed to support travelers going to the beach and
associated amenities. The nearest residential uses are located along Marcus Avenue
and are approximately 290 feet from the existing restaurant. The Property has supported
an eating and/or drinking operation with a beer and wine license since 1959 and is
considered an established use in the area. Eating and drinking establishments with
incidental alcohol service are common in the commercial area on the peninsula and the
proposed Alcoholic Beverage Control license type is not anticipated to alter the
operational characteristics of the commercial center such that it becomes detrimental to
the area. The project does not include any late hours that could potentially impact
residential areas.
iv. The proximity to other establishments selling alcoholic beverages for either off -site or on -
site consumption.
1. There are multiple restaurants in the vicinity that are authorized for the sale of alcoholic
beverages, including Ocean Restaurant (formerly Rudy's), Malarkey's, Mama D's,
among others. The subject restaurant currently serves beer and wine, without any
issues. The addition of liquor service at the restaurant is acceptable to the Police
Department, as late hours would no longer be permitted on -site. Reducing the number
of businesses serving alcohol after 11:00 p.m. is acknowledged as a benefit to the
community. The closest establishment approved for off -site consumption is Pavilions,
which is located across Newport Boulevard. Expanding the ABC license to allow for full
liquor service at the subject restaurant would not impact operations at the grocery store.
There is no evidence suggesting this use has been detrimental to surrounding properties
or the neighborhood.
v. Whether or not the proposed amendment will resolve any current objectionable conditions.
1. The project has been reviewed and conditioned to ensure that the purpose and intent of
Section 20.48.030 (Alcohol Sales) of the Zoning Code is maintained and that a healthy
environment for residents and businesses is preserved. The service of alcohol is
intended for the convenience of customers dining at the establishment. Operational
conditions of approval recommended by the Police Department relative to the sale of
alcoholic beverages will ensure compatibility with the surrounding uses and minimize
alcohol -related impacts.
2. The proposed hours of operation of the establishment will minimize the potential effects
of the upgraded ABC License type. The establishment will close by 11:00 p.m., daily,
which will ensure the use does not become a late night bar, tavern, or nightclub.
3. The establishment is located within an existing commercial and mixed -use area which
is developed with other commercial uses including restaurants. The upgrade in ABC
license in conjunction with an existing restaurant will not alter the existing conditions,
but will complement the proposed food service and provide a convenience to customers.
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SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Planning Commission of the City of Newport Beach hereby approves UP2019-002,
subject to the conditions set forth in Exhibit "A," which is attached hereto and incorporated
by reference.
2. This action shall become final and effective 14 days following the date this Resolution
was adopted unless within such time an appeal is filed with the City Clerk in accordance
with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal
Code.
3. This resolution supersedes all existing use permits, which upon vesting of the rights
authorized by this use permit (UP2019-002) shall become null and void.
PASSED, APPROVED, AND ADOPTED THIS 20th DAY OF JUNE, 2019.
AYES:
NOES:
ABSTAIN
ABSENT:
BY:
Ll'�
Peter Zak, Chairman
Lee Lowrey, Secretary
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EXHIBIT "A"
CONDITIONS OF APPROVAL
(Project -specific conditions are in italics)
PLANNING DIVISION
1. The development shall be in substantial conformance with the approved Property plan and
floor plans dated with the date of this approval, except as modified by applicable conditions
of approval.
2. The Project is subject to all applicable City ordinances, policies, and standards, unless
specifically waived or modified by the conditions of approval.
3. The maximum net public area of the indoor dining area shall be limited to 501 square
feet.
4. A maximum of three tables and 12 chairs are permitted within the upstairs dining area.
5. The Applicant shall comply with all federal, state, and local laws. Material violation of
any of those laws in connection with the use may be cause for revocation of this Use
Permit.
6. Hours of operation shall be between 11:00 am to 10:00 pm Sunday through Thursday,
and 11:00 am to 11:00 pm on Friday and Saturday. No late hours (after 11:00 p.m.) are
permitted.
7. The Applicant shall provide a revised striping plan to relocate the existing accessible
space on -site to be directly and independently accessible from the alley. If necessary,
the other parking spaces may be reduced in width to accommodate the relocated
accessible stall and associated features (e.g. path of travel, loading area). The final
striping plan shall be approved by the Community Development Department (CDD)
Director and Public Works Department. The CDD Director shall have the authority to
waive this requirement.
8. Any new or replacement signs shall be in conformance with the approved
Comprehensive Sign Program for the Project (if applicable) and provisions of NBMC
Chapter 20.42 (Signs).
9. This Use Permit may be modified or revoked by the Planning Commission should they
determine that the proposed uses or conditions under which it is being operated or
maintained is detrimental to the public health, welfare or materially injurious to property
or improvements in the vicinity or if the property is operated or maintained so as to
constitute a public nuisance.
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10. Any change in operational characteristics, expansion in net public area, or other
modification to the approved plans, shall require an amendment to this Use Permit or
the processing of a new Use Permit.
11. A copy of the Resolution, including conditions of approval Exhibit "A" shall be
incorporated into the Building Division and field sets of plans prior to issuance of building
permits.
12. The Property shall not be excessively illuminated based on the luminance
recommendations of the Illuminating Engineering Society of North America, or, if in the
opinion of the Director of Community Development, the illumination creates an
unacceptable negative impact on surrounding land uses or environmental resources.
The Director may order the dimming of light sources or other remediation upon finding
that the Property is excessively illuminated.
13. All noise generated by the proposed use shall comply with the provisions of NBMC
Chapter 10.26 and other applicable noise control requirements of the NBMC. The
maximum noise shall be limited to no more than depicted below for the specified time
periods unless the ambient noise level is higher:
Between the hours of 7:00 a.m.
and 10:00 .m.
Between the hours of 10:00 p.m.
and 7:00 a.m.
Location
Interior
Exterior
Interior
Exterior
Residential Property
45dBA
55dBA
40dBA
50dBA
Residential Property located within
100 feet of a commercial property
45dBA
60dBA
45dBA
50dBA
Mixed Use Property
45dBA
60dBA
45dBA
50dBA
Commercial Property
N/A
65dBA
N/A
60dBA
14. Should the property be sold or otherwise come under different ownership, any future
owners or assignees shall be notified of the conditions of this approval by either the
current business owner, property owner or the leasing agent.
15. Unless otherwise approved by the Community Development Director, all trash shall be
stored within the building or within dumpsters stored in the trash enclosure (three walls
and a self -latching gate) or otherwise screened from view of neighboring properties,
except when placed for pick-up by refuse collection agencies. The trash enclosure shall
have a decorative solid roof for aesthetic and screening purposes.
16. Trash receptacles for patrons shall be conveniently located both inside and outside of
the establishment, however, not located on or within any public property or right-of-way.
17. The exterior of the business shall be maintained free of litter and graffiti at all times. The
owner or operator shall provide for daily removal of trash, litter debris and graffiti from the
premises and on all abutting sidewalks within 20 feet of the premises.
18. The Applicant shall ensure that the trash dumpsters and/or receptacles are maintained
to control odors. This may include the provision of either fully self-contained dumpsters
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or periodic steam cleaning of the dumpsters, if deemed necessary by the Planning
Division. Cleaning and maintenance of trash dumpsters shall be done in compliance
with the provisions of Title 14, including all future amendments (including Water Quality
related requirements).
19. Deliveries and refuse collection for the facility shall be prohibited between the hours of
10:00 p.m. and 7:00 a.m. on weekdays and Saturdays and between the hours of 10:00
p.m. and 9:00 a.m. on Sundays and Federal holidays, unless otherwise approved by the
Director of Community Development, and may require an amendment to this Use
Permit.
20. Storage outside of the building in the front or at the rear of the property shall be
prohibited, with the exception of the required trash container enclosure.
21. A Special Events Permit is required for any event or promotional activity outside the
normal operational characteristics of the approved use, as conditioned, or that would
attract large crowds, involve the sale of alcoholic beverages, include any form of on -site
media broadcast, or any other activities as specified in the Newport Beach Municipal
Code to require such permits.
22. UP2019-002 shall expire and become void unless exercised within 24 months from the
actual date of review authority approval, except where an extension of time is approved in
compliance with the provisions of Title 20 Planning and Zoning of the Newport Beach
Municipal Code.
23. To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless
City, its City Council, its boards and commissions, officials, officers, employees, and agents
from and against any and all claims, demands, obligations, damages, actions, causes of
action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including
without limitation, attorney's fees, disbursements and court costs) of every kind and nature
whatsoever which may arise from or in any manner relate (directly or indirectly) to City's
approval of Ho Sum Bistro Conditional Use Permit including, but not limited to, UP2019-
002 (PA2019-001). This indemnification shall include, but not be limited to, damages
awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred
in connection with such claim, action, causes of action, suit or proceeding whether incurred
by Applicant, City, and/or the parties initiating or bringing such proceeding. The Applicant
shall indemnify the City for all of City's costs, attorneys' fees, and damages which City
incurs in enforcing the indemnification provisions set forth in this condition. The Applicant
shall pay to the City upon demand any amount owed to the City pursuant to the
indemnification requirements prescribed in this condition.
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PUBLIC WORKS DEPARTMENT
24. The trash enclosure/dumpster shall be located outside of the required parking
dimensions. If the trash enclosure cannot be physically accommodated based on Public
Works and Building Division requirements, the Community Development Director may
waive this requirement.
POLICE DEPARTMENT
25. The Applicant shall comply with all federal, state, and local laws, and all conditions of the
Alcohol Beverage License. Material violation of any of those laws or conditions in
connection with the use is a violation and may be cause for revocation of the use permit.
26. All owners, managers, and employees selling alcoholic beverages shall undergo and
successfully complete a certified training program in responsible methods and skills for
selling alcoholic beverages within 60 days of hire. This training must be updated every
three years regardless of certificate of expiration date. The certified program must meet
the standards of the certifying/licensing body designated by the State of California. The
establishment shall comply with the requirements of this section within 60 days of
approval. Records of each owner's, manager's, and employee's successful completion
of the required certified training program shall be maintained on the premises and shall
be presented upon request by a representative of the City of Newport Beach.
27. The eating and drinking establishment shall close no later than 11:00 p.m., daily.
28. Approval does not permit the premises to operate as a bar, tavern, cocktail lounge, or
nightclub as defined by the NBMC.
29. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of
food during the same period. The licensee shall at all times maintain records, which
reflect separately the gross sales of food and the gross sales of alcoholic beverages of
the licensed business. These records shall be kept no less frequently than on a quarterly
basis and shall be made available to the Police Department on demand.
30. No alcoholic beverages shall be consumed on any property adjacent to the licensed
premises under the control of the licensee.
31. There shall be no live entertainment or dancing allowed on the premises.
32. No games or contests requiring or involving the consumption of alcoholic beverages
shall be allowed.
33. There shall be no reduced price alcoholic beverage promotions after 9:00 p.m.
34. Food service from the regular menu shall be made available to patrons until closing.
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35. Petitioner shall not share any profits or pay any percentage or commission to a promoter
or any other person based upon monies collected as a door charge, cover charge, or
any other form of admission charge, including minimum drink orders or the sale of drinks.
36. Any event or activity staged by an outside promotor or entity, where the Applicant,
operator, owner, or his/her employees or representatives share in any profits, or pay
any percentage or commission to a promoter or any other person based upon money
collected as a door charge, cover charge, or any other form of admission charge is
prohibited.
37. "VIP"passes or other passes to enter the establishment, as well as door charges, cover
charges, or any other form of admission charge, including minimum drink order of the
sale of drinks is prohibited (excluding charges for prix fixe meals).
38. There shall be no on -site radio, television, video, film, or other electronic media
broadcasts, including recordings to be broadcasted at a later time, which include the
service of alcoholic beverages, without first obtaining an approved Special Event Permit
issued by the City of Newport Beach.
39. Strict adherence to the maximum occupancy limits is required.
40. The Applicant shall maintain a security recording system with 30-day retention and make
those recordings available to police upon request.
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Attachment No. PC 2
Draft Resolution for Denial
31
32
RESOLUTION NO. PC2019-020
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF NEWPORT BEACH, CALIFORNIA DENYING CONDITIONAL
USE PERMIT NO. UP2019-002 FOR A FOOD SERVICE, EATING
AND DRINKING ESTABLISHMENT WITH A TYPE 47
ALCOHOLIC BEVERAGE CONTROL (ABC) LICENSE LOCATED
AT 3112 NEWPORT BOULEVARD (PA2019-001)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
An application was filed by Willie-Nilly Inc. ("Applicant") with respect to property located at
3112 Newport Boulevard, and legally described as Lot 2, Block 431, of the Lancasters
Addition Tract ("Property') requesting approval of a conditional use permit.
2. The applicant requests a conditional use permit to change the existing fast food (take-out
service), eating and drinking establishment to a new food service, eating and drinking
establishment. In conjunction with this change, the applicant requests to upgrade the
current ABC License Type from a Type 41 (On -Sale Beer & Wine — Eating Place) to a
Type 47 (On -Sale General — Eating Place), allow use of the upstairs dining area throughout
the day, and reduce the hours of operation to exclude late hours (i.e. no operations after
11:00 p.m.) ("Project"). The applicant also requests a continuation of historical parking
reductions.
3. The Property is designated CV (Visitor Serving Commercial) by the General Plan Land
Use Element and is located within the CV (Commercial Visitor- Serving) Zoning District.
4. The Property is located within the coastal zone. The Coastal Land Use Plan category is
Visitor Serving Commercial (CV -A) — (0.0-0.75 FAR) and is located within the Commercial
Visitor -Serving (CV) Coastal Zone District.
5. A coastal development permit is not required because there is no physical expansion or
intensification of use. The change in the ABC license type to allow liquor sales is ancillary
to the existing restaurant operations. No changes or expansion to the existing upstairs
dining area are proposed. The change in use from a take-out restaurant to food service,
eating and drinking establishment results in a lower parking demand than current
requirements. Lastly, the permitted hours of operation of the establishment would be
reduced.
6. A public hearing was held on June 20th, 2019, in the Council Chambers at 100 Civic Center
Drive, Newport Beach. A notice of time, place and purpose of the hearing was given in
accordance with the Ralph M. Brown Act and Newport Beach Municipal Code ("NBMC").
Evidence, both written and oral, was presented to, and considered by, the Planning
Commission at this hearing.
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SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
1. Pursuant to Section 15270 of the California Environmental Quality Act (CEQA) Guidelines,
projects which a public agency rejects or disapproves are not subject to CEQA review.
SECTION 3. REQUIRED FINDINGS.
In accordance with City of Newport Beach Zoning Code ("Zoning Code") Section 20.52.020.E
(Findings and Decision) of the NBMC, eating and drinking establishments classified as "Food
Service, No Late Hours" located within the CV (Commercial Visitor- Serving) Zoning District
require the approval of a minor use permit. The Planning Commission may approve a minor
use permit only after making each of the five required findings set forth in Section 20.52.020.F.
In this case, the Planning Commission was unable to make the required findings based upon
the following:
1. The Planning Commission determined, in this case, that the proposed use permit for a
change in alcohol license type and use of the upstairs dining area during the daytime is
inconsistent with the legislative intent of NBMC Title 20. Allowed use of the upstairs
dining area during the daytime would create additional traffic, parking demand, noise,
and trash that could disturb residents, businesses, and visitors.
2. The requested change in alcohol license type to include liquor service could result in
more crime within the Reporting District.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Planning Commission of the City of Newport Beach hereby denies UP2019-002.
2. This action shall become final and effective 14 days following the date this Resolution
was adopted unless within such time an appeal is filed with the City Clerk in accordance
with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal
Code.
PASSED, APPROVED, AND ADOPTED THIS 20th DAY OF JUNE, 2019.
AYES:
NOES:
ABSTAIN:
ABSENT:
01-25-19
S4
BY:
Peter Zak, Chairman
M
Lee Lowrey, Secretary
Planning Commission Resolution No. PC2019-020
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3C
Attachment No. PC 3
Police Department Memorandum
37
38
NEWPORT BEACH POLICE DEPARTMENT
DETECTIVE DIVISION
MEMORANDUM
TO:
Liz Westmoreland, Assistant Planner
FROM:
Wendy Joe, Police Civilian Investigator
DATE:
March 13, 2019
SUBJECT:
HoSum Bistro
3112 Newport Blvd.
PA2019-001
At your request, the Police Department has reviewed the project application for Ho Sum Bistro
located at 3112 Newport Blvd., Newport Beach. Per the project description, the applicant is
seeking to amend their Conditional Use Permit (CUP). The only proposed change is to change
their ABC liquor license from a Type 41 Beer and Wine to a Type 47 with full liquor. There are
no late hours and no live entertainment proposed.
Statistical Data and Public Convenience or Necessity
Business and Professions Code §23958.4 finds "undue concentration" for an applicant premises
in two ways: 20% higher crime with an alcohol nexus in a Reporting District as compared to the
City-wide average, or an over saturation of alcohol licenses in a census tract compared to the
county. When undue concentration is found to exist, a judgment on Public Convenience or
Necessity (PCN) is required. However, there is no definitive or uniform guideline defining the
application of PCN. While the final determination of PCN for a Type 47 license falls to the
Department of Alcoholic Beverage Control (ABC), ABC encourages local authorities to address
PCN in the Conditional Use Permit (CUP) process.
Attached is a summary report compiled by Newport Beach Police Department (NBPD) Crime
Analyst, Kristi Kondo, which provides detailed statistical information related to alcohol
establishments and calls for service in and around the applicant's current place of business at
3112 Newport Blvd. (2017 statistics have been provided as 2018 is not yet complete.)
Crime Statistics:
The Police Department divides the City into areas referred to as Reporting Districts. This allows
the Police Department to create statistical data, as well as better communicate officer locations
while policing. The proposed applicant location is within Reporting District (RD) 15 which
stretches from 37th Street to 201h Street along the Newport Beach Peninsula.
Per Business and Professions Code §23958.4, the Police Department is required to report
offenses of criminal homicide, forcible rape, robbery, aggravated assault, burglary, larceny, theft,
and motor vehicle theft (all Part 1 crimes), combined with all arrests for other crimes, both
felonies and misdemeanors (except traffic citations) to ABC. These figures make up the "Crime
Count" which is indicated on the attached statistical data form.
39
HoSum Bistro
PA2019-001
This reporting district is reported to ABC as a high crime area as compared to other reporting
districts in the City. The RD's Crime Count is 670, which ranks 1 st in the City at 401 % over the
City-wide crime count average of 134. Since this area has a 20% greater number of reported
crimes than the average number of reported crimes as determined from all crime reporting
districts within the City, the area is found to have undue concentration. In comparison,
neighboring RD 13 is 64% above the City-wide average, RD 16 is 42% higher, and RD 25 is
73% higher.
The highest volume crime is assault and the highest volume arrest is public intoxication or drug
related offenses.
DUI, Public Intoxication, and liquor law violations make up 39% of arrests in this reporting district.
In comparison, the figure for neighboring RD 13 is 33%, RD 16 is 24%, and RD 25 is 29%.
This location meets the legal criteria for undue concentration as it relates to crime. (B&P
§23958.4).
Alcohol License Statistics:
The applicant premise is located within census tract 0635.00. This census tract has an
approximate population of 5,726 residents with 82 active alcohol licenses and 72 licensed
establishments. That is a per capita ratio of 1 license for every 70 residents. Per the Business
and Professions code, we compare this per capita ratio to Orange County's per capita ratio of 1
license for every 467 residents. Since the area's ratio exceeds the ratio of on -sale retail licenses
to population in the county, the area is deemed to have an undue concentration of alcohol
licenses.
This location meets the legal criteria for undue concentration as it relates to over saturation of
alcohol licenses (B&P §23958.4);
Dispatch Events:
There were 6 dispatch events for 3112 Newport Blvd. in 2018. Only 3 of those events were
related to the business. The 3 calls include a suspect leaving without paying, an audible burglar
alarm, and a vehicle requiring a tow from their back lot.
Discussion and Recommendations
Undue Concentration exists in this location in regards to both crime and alcohol license
saturation. A finding that this restaurant is a public convenience or necessity must be made in
order to obtain the new alcohol license. This is demonstrated when the business operation
provides some kind of benefit to the surrounding community. Approval of a use permit will
indicate to ABC in their application process the City of Newport Beach has made the finding of
public convenience or necessity.
The Police Department is routinely concerned when alcohol licenses are added within the City's
over concentrated areas. Alcohol is not new to this establishment, but the addition of liquor is.
Given the business has no calls for service related to alcohol and will close at 11:00 p.m., daily,
the Police Department has no objections to this project and finds this application an opportunity
to bring the CUP commensurate with current standards.
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HoSum Bistro
PA2019-001
RECOMMENDED CONDITIONS OF APPROVAL
The Police Department requests City Staff and the deciding body evaluate the following
conditions for this use permit.
1. The applicant shall comply with all federal, state, and local laws, and all conditions of the
Alcoholic Beverage License. Material violation of any of those laws or conditions in
connection with the use is a violation and may be cause for revocation of the use permit.
2. All owners, managers and employees selling alcoholic beverages shall undergo and
successfully complete a certified training program in responsible methods and skills for
selling alcoholic beverages within 60 days of hire. This training must be updated every 3
years regardless of certificate expiration date. The certified program must meet the
standards of the certifying/licensing body designated by the State of California. The
establishment shall comply with the requirements of this section within 60 days of
approval. Records of each owner's manager's and employee's successful completion of
the required certified training program shall be maintained on the premises and shall be
presented upon request by a representative of the City of Newport Beach.
3. The eating and drinking establishment shall close no later than 11:00 p.m., daily.
4. Approval does not permit the premises to operate as a bar, tavern, cocktail lounge or
nightclub as defined by the Newport Beach Municipal Code.
5. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food
during the same period. The licensee shall at all times maintain records, which reflect
separately the gross sales of food and the gross sales of alcoholic beverages of the
licensed business. These records shall be kept no less frequently than on a quarterly basis
and shall be made available to the Police Department on demand.
fi.. No alcoholic beverages shall be consumed on any property adjacent to the licensed
premises under the control of the licensee.
7. There shall be no live entertainment or dancing allowed on the premises.
& No games or contests requiring or involving the consumption of alcoholic beverages shall.
be allowed.
9. There shall be no reduced price alcoholic beverage promotions after 9:00 p.m
10. Food service from the regular menu shall be made available to patrons until closing
11. Petitioner shall not share any profits or pay any percentage or commission to a promoter
or any other person based upon monies collected as a door charge, cover charge, or any
other form of admission charge, including minimum drink orders or the sale of drinks.
12. Any event or activity staged by an outside promoter or entity, where the applicant,
operator, owner or his employees or representatives share in any profits, or pay any
3
41
HoSum Bistro
PA2019-001
percentage or commission to a promoter or any other person based upon money collected
as a door charge, cover charge or any other form of admission charge is prohibited.
13. "VIP" passes or other passes to enter the establishment, as well as door charges, cover
charges, or any other form of admission charge, including minimum drink order of the sale of
drinks is prohibited (excluding charges for prix fixe meals).
14. There shall be no on -site radio, television, video, film, or other electronic media
broadcasts, including recordings to be broadcasted at a later time, which include the
service of alcoholic beverages, without first obtaining an approved Special. Event Permit
issued by the City of Newport Beach.
15. Strict adherence to maximum occupancy limits is required
16. The applicant shall maintain a security recording system with a 30-day retention and make
those recording available to police upon request.
If you have any questions as to the content of this memorandum, please contact Investigator
Wendy Joe at (949)644-3705 or wjoe@nbpd.org.
Wendy Jbe
Police Gi�ilian Investigator, Special Investigations Unit
Randy Parker
Detective Sergeant, Special Investigations Unit
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TOTAL = 42
SQ. FOOTAGE CALCULATIONS:
(E) LOT SIZE: 2,575 SQUARE FEET
(E) BUILDING SIZE: 1,534 SQUARE FEET
(E) NET PUBLIC AREA: 501 SQUARE FEET
SITE PLAN Scale: 1/4" = V-0"
LEGAL DESCRIPTION
OWNER:
HO SUM BISTRO
3112 NEWPORT BLVD.,
NEWPORT BEACH CA. 92663
949-230-5661 Attn: Ed O'Neill
LEGAL:
LOT 2, BILK 431, TRACT
CITY OF NEWPORT BEACH
COUNTY OF ORANGE, STATE OF CALIFORNIA
ASSESSOR PARCEL NUMBER:
047-041-08
ZONING:
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RESTAURANT GROSS:
1,534
NET PUBLIC AREA:
501 SQ. FT.
NUMBER OF PARKING STALLS:
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REVISIONS
Sheet
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REVISIONS
Sheet
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42
Planning Commission - June 20, 2019
Item No. 5a Additional Materials Presented At Meeting
Ho Sum Bistro (PA2019-001)
Planning
Commission
Public Hearing
June zo, zosg
Planning Commission - June 20, 2019
Item No. 5a Additional Materials Presented At Meeting
Ho Sum Bistro (PA2019-001)
Community Development Department - Planning Division
Planning Commission - June 20, 2019
Item No. 5a Additional Materials Presented At Meeting
Ho Sum Bistro (PA2019-001)
• ABC Type 47 — full liquor
• Reduced hours (close by iipm)
• Upstairs dining area —full use
• Parking waiver
Community Development Department- Planning Division
Planning Commission - June 20, 2019
Item No. 5a Additional Materials Presented At Meeting
Ho Sum Bistro (PA2019-001)
• ABC Type 41- beer and wine - -- _
rise 5.v. — _aiw nxc ura
3 I_
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5yr�wj :5[ti _ i
eats total 12 upstairs) s
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• 29 space parking waiver
• Take-out restaurant
2nd floor Plans —Ex. UP
Community Development Department- Planning Division
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Second Floor
First Floor
Community Development Department- Planning Division
Planning Commission - June 20, 2019
Item No. 5a Additional Materials Presented At Meeting
Ho Sum Bistro (PA2019-001)
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Community Development Department- Planning Division h
Planning Commission - June 20, 2019
Item No. 5a Additional Materials Presented At Meeting
Ho Sum Bistro (PA2019-001)
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Community Development Department- Planning Division
Planning Commission - June 20, 2019
Item No. 5a Additional Materials Presented At Meeting
Ho Sum Bistro (PA2019-001)
There shall be no exterior advertising or signs
of any kind or type, including advertising
directed to the exterior from within, promoting
or indicating the availability of alcoholic
beverages. Interior displays of alcoholic
beverages or signs which are clearly visible to
the exterior shall constitute a violation of this
condition.
Community Development Department- Planning Division 8
Planning Commission - June 20, 2019
Item No. 5a Additional Materials Presented At Meeting
Ho Sum Bistro (PA2019-001)
• Conduct a public hearing
• Find the project exempt from CEQA
• Approve UPzosg-ooz
• Rescind existing use permits
Community Development Department- Planning Division
Planning Commission - June 20, 2019
Item No. 5a Additional Materials Presented At Meeting
Ho Sum Bistro (PA2019-001)
Questions.?
Community Development Department- Planning Division
10
Planning Commission - June 20, 2019
Item No. 5a Additional Materials Presented At Meeting
Ho Sum Bistro (PA2019-001)
Table 1- Summary of Existing vs, Proposed Parking Requirements
Existing UP3110A
Proposed (UP2019-002)
Use Type
Food Service, Eating and
Classification
Take -Out Restaurant
drinking establishment (no late
hours
Seats
43 seats (per plans)
33 seats
Methodology for
0 1 space per 50 sf of gross
' 1 space per 30-50 square
Parking Demand
floor area plus 1 space for
feet (sf) of NPA
each employee
* 1 space per 40 sf
sf gross floor area
(recommended}
• 3 employees
employees
. 501 sf NPA (includes both
floors)
Parking Spaces
34 spaces
13 spaces
Required
Parking Provided
5 spaces
5 spaces
(1 space may be lost due to
potential disabled parking
space modifications)
Parking Spaces
29 spaces
8 spaces
Waived
Summary
Based on Zoning Code changes, the proposed use will
require 21 fewer spaces than the required existing use
permit (UP3110A).
Community Development Department - Planning Division
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