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HomeMy WebLinkAbout2.0_Baja Sharkeez Remodel_PA2017-255CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT June 18, 2020 Agenda Item No. 2 SUBJECT: Baja Sharkeez Remodel (PA2017-255) ▪Conditional Use Permit No. UP2017-034 ▪Coastal Development Permit No. CD2019-054 SITE LOCATION: 110 – 114 McFadden Place APPLICANT: Baja Sharkeez OWNER: Michael Fazzi PLANNER: Liz Westmoreland, Associate Planner 949-644-3234, lwestmoreland@newportbeachca.gov PROJECT SUMMARY A conditional use permit and coastal development permit to allow modifications to an existing food service eating and drinking establishment, Baja Sharkeez, with late hours and a Type 47 (On Sale General Eating Place) Alcoholic Beverage Control license. Baja Sharkeez would expand into the adjacent restaurant at 110 McFadden (formerly Sol Grill) creating a new dining area. The 110 McFadden space is currently permitted to operate from 11:00 a.m. to 11:00 pm., daily. This space would continue to close at 11:00 p.m. consistent with existing use permit conditions, but the Applicant is requesting increased hours in the morning to serve breakfast starting at 9:00 a.m. The expanded dining area would operate with the existing Type 47 license. The 114 McFadden space is currently permitted to operate from 11:00 a.m. to 2:00 a.m., daily. Proposed hours of operation would be increased in the morning to allow breakfast service starting at 9:00 a.m. and decrease d at night to close at 1:30 a.m. The existing use permit for 114 McFadden allows live entertainment and dancing, which would be eliminated if the application is approved. The project includes a continuation of historical parking waivers. The establishments currently operate under Use Permit Nos. 1783 and 3034, which would be superseded if this application is approved. Pursuant to Newport Beach Municipal Code (NBMC) 5.25, the operation as described requires the owner/operator to obtain an Operator License issued by the Chief of Police because the business includes on-sale alcohol service in conjunction with late hours (after 11:00 p.m.). 1 INTENTIONALLY BLANK PAGE2 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 2 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. PC2020-021 approving Conditional Use Permit No. UP2017- 034 and Coastal Development Permit No. CD2019-054 (Attachment No. PC 1). VICINITY MAP GENERAL PLAN ZONING 3 INTENTIONALLY BLANK PAGE4 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 3 LOCATION GENERAL PLAN ZONING CURRENT USE ON-SITE Mixed Use Water 2 (MU- W2) Mixed-Use Water Related (MU-W2) Baja Sharkeez, former Sol Grill (vacant) NORTH MU-W2 MU-W2 Office, parking lot SOUTH MU-W2, Multiple Residential (RM) MU-W2, Multiple Residential (RM) Mixed use buildings, retail, restaurants, multi-family residential EAST MU-W2 MU-W2 Parking lot, multi-family residential WEST Visitor Serving Commercial (CV) Commercial Visitor- Serving (CV) McFadden Square, municipal parking lot, restaurants, visitor accommodations INTRODUCTION Project Setting and Background The subject property is located within the McFadden Square area of the Balboa Peninsula near the Newport Pier. Surrounding land uses include multi-family residential units across Court Avenue to the south; retail, coffee shop, and food service businesses with residential above to the west; McFadden Place to the north; and a small office building and parking lot to the east across the alley. The 137-parking-space McFadden Square municipal parking lot is located adjacent to the project site to the north. Also located within walking distance is the Newport Pier municipal parking lot which contains approximately 260 parking spaces. The existing structure on the subject property includes two restaurant tenant spaces, 110 and 114 McFadden Place. The existing Baja Sharkeez restaurant is located at 114 McFadden Place and will be referred to as “114 McFadden” herein. The former Sol Grill restaurant is located in a vacant tenant space attached and adjacent to Baja Sharkeez. It will be referred to as “110 McFadden”. According to Orange County Assessor records, the building was originally constructed around 1932. Restaurants and bars serving alcohol have occupied the building since the early 1970s. The two restaurant tenant spaces are currently regulated by separate use permits and have no physical interior access between one space and the other. The former Sol Grill was regulated by UP No. 3034 (as amended) and Baja Sharkeez is regulated by UP No. 1783 (as amended). Both tenant spaces have been occupied by several different operators. 110 McFadden has historically been occupied by a market, take-out restaurant, and most recently by a full-service restaurant, Sol Grill, which closed in mid- 2018. 114 McFadden has been historically occupied by nightclubs, bars, and restaurants. In the 1990s, Baja Sharkeez moved into the space under the existing use permit. Although the ABC License was updated to reflect the eating and drinking establishment’s operating characteristics (i.e. no longer a bar/nightclub), the use permit has not been updated since 1985 and it still allows live entertainment and dancing. Both tenant spaces share an on- site parking lot at the rear that contains 10 parking spaces. 5 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 4 Project Description The applicant, Baja Sharkeez, proposes the following changes to the existing eating and drinking establishment: a.Remodel the 110 McFadden restaurant space to modernize the building and create an attached dining room to serve 114 McFadden. Both spaces would be combined to form one restaurant. b.The remodel includes installation of a retractable roof over the 110 McFadden space and open-air patio areas. c.Remove existing restriction regarding maximum allowable net public area during the day (prior to 9 p.m.) at 114 McFadden to allow full use of the space; d.The existing 110 and 114 McFadden restaurant hours would be modified to allow increased hours in the morning (i.e. opening of 9:00 a.m. instead of 11:00 a.m.). e.No new or additional late hours are proposed. 110 McFadden would retain the existing closing time of 11:00 p.m. (i.e no late hours). f.The existing late night operating hours at 114 McFadden would be reduced to match the existing Alcoholic Beverage Control (ABC) License conditions. Proposed operations would cease at 1:30 am where the existing use permit for 114 McFadden allows operations until 2:00 a.m. g.The existing 110 McFadden restaurant’s Type 41 Alcoholic Beverage Control License (ABC) would be eliminated and the new dining room would operate pursuant to a Type 47 license. h.The onsite parking lot in the rear would be restriped to retain the existing 10 parking spaces. Any existing unpermitted encroachments or storage areas in the parking lot would be removed prior to implementation of the project and remain clear for vehicle parking. Table 1 Existing and Proposed Operations provides a summary of existing and proposed conditions for both tenant spaces. 6 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 5 Table 1 Existing and Proposed Operations Existing 114 McFadden Proposed 114 McFadden Existing 110 McFadden Proposed 110 McFadden Hours of Operation 11:00 am – 2:00 am 9:00 am – 1:30 am 11:00 am - 11:00 pm 9:00 am -11:00 pm Net Public Area (NPA) 960 sf NPA daytime ~1,421 sf NPA nighttime 1,368 sf NPA ~445 sf NPA1 445 sf NPA Number of Seats 125 125 26 292 Outdoor Patio Area Yes Yes No Yes3 ABC License Type Type 47 Type 47 Type 41 Type 47 1.Unknown, prior use measured in gross sf, but the floor plan appears similar in terms of public area. 2.Proposed seating is an estimate. Some seating will be provided as couches and not individual seats. 3.Proposed as an indoor-outdoor space with retractable roof and large pull up windows/doors. Not a separate patio. DISCUSSION General Plan, Zoning Code, Local Coastal Program The Property is located in the Mixed-Use Water Related (“MU-W2”) Zoning District and Mixed-Use Water 2 (MU-W2) land use designation of the General Plan. The MU-W2 designation applies to waterfront properties in which marine-related uses may be intermixed with general commercial, visitor-serving commercial and residential dwelling units on the upper floors. The existing and proposed use of the site as a restaurant is a permitted use in the zoning district with approval of a conditional use permit. No residential use currently exists on site and none is proposed. The project complies with all development standards of the General Plan, Zoning Code, and CLUP including floor area, setbacks, and height, and no deviations are requested with the exception of the historical parking waivers previously approved for both restaurants. Land Use Policy LU6.8.2 (Component Districts) of the General Plan notes “McFadden Square should be emphasized as [one of the] primary activity centers of the northern portion of the Peninsula.” The existing and requested operation of Baja Sharkeez, a resident and visitor serving use, is consistent with this policy. 7 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 6 Land Use Policy LU6.12.1 (Priority Uses) of the General Plan and Land Use Policy 2.1.5-7 of the Coastal Land Use Plan state that one of the goals for the McFadden Square area is to “accommodate visitor- and local-serving uses that take advantage of McFadden Square’s waterfront setting including specialty retail, restaurants, and small scale overnight accommodations”. The proposed project is consistent with this policy because it will help to ensure the continued operation of a visitor-serving establishment and occupancy of a vacant storefront. Remodel No construction is proposed within the existing 114 McFadden space, other than building a door in the adjoining wall to combine the two spaces. The proposed remodel at 110 McFadden would include the removal of the existing solid wall along Court Avenue, which would be replaced with a patio area, glass barriers, and windows. The roof would be removed and replaced with a retractable roof. Overall, the design would create an open- air dining experience to complement the existing Baja Sharkeez operation. The 110 McFadden building height would be increased from 17 feet 5 inches to approximately 19 feet, to match the existing roofline of 114 McFadden. Any proposed rooftop equipment would be screened from view of pedestrians and motorists in the vicinity per zoning code requirements. Because the overall occupancy of the restaurant would increase (due to merging the two tenant spaces), Building and Life Safety Services (Fire) Divisions have conditioned the project to include the installation of a fire sprinkler system where none currently exists. The doors at 110 McFadden will also be designed and conditioned to meet egress requirements for the larger space. Lastly, the property will be updated to meet additional accessibility requirements, such as the creation of an accessible parking space in the rear parking lot and substantial upgrades to the 110 McFadden restroom. The building upgrades would provide significant benefits and additional protection to patrons, employees, and the local neighborhood. Operating Characteristics and Hours of Operation Each tenant space would have different operating hours and related operational characteristics. Those related to alcoholic beverage service and occupancy are particularly important to the Newport Beach Police Department (NBPD) and Fire Marshal. On a typical day, the proposed operations will generally occur as follows: 8 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 7 9:00 am •Both tenant spaces open for business. 9:00 pm •All doors, windows, patio areas (114 McFadden), and retractable roof (110 McFadden) will close except for egress and ingress. 10:30 pm •“Last call” for alcohol service at 110 McFadden •No new patrons may enter the 110 McFadden space. •Employees advise existing customers in the 110 McFadden space of the upcoming closing time of 11:00 pm. Patrons may leave the building entirely or enter 114 McFadden through the connecting door. •Manager on duty restricts occupancy at 114 McFadden to 141 persons in order to accommodate existing patrons transferring from 110 to 114 McFadden. Restrict new entries as needed to ensure maximum occupancy is not exceeded for 114 McFadden. 11:00 pm •Any remaining patrons exit 110 McFadden. •Connecting door is closed. •110 McFadden closes. •Cleaning operations will occur after 11:00 p.m. ~ 1:00 am •Last call at 114 McFadden 1:30 am •No further sales, service, or consumption of alcoholic beverages allowed. •Remaining patrons begin to leave the premises. Parking The McFadden Square area is adequately served by the two adjacent municipal lots throughout the year and the close proximity to multiple commercial uses and coastal resources will result in shared trips to the project site area. In keeping with historical conditions, walk-up and pass-by patron 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, such as the beach, pier, recreation, shopping, and dining, especially during the summer season. The current parking requirement for a food service, eating and drinking establishment, parking is 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 staff believes a parking rate of one 9 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 8 space per 50 sf of NPA is appropriate based on several physical design and operational characteristics. Ride sharing is common for businesses that serve alcohol, resulting in fewer parked cars. According to an OC Register Article dated December 29, 2017, ride share data revealed that in Orange County Baja Sharkeez was the number 2 top location for Lyft and number 8 top location for Uber. Additionally, the proposed conditions of approval would prohibit live entertainment and dancing, which also lowers occupancy and resulting parking demand. Like most restaurants in the area, many local residents and visitors walk or bike to McFadden Square and the surrounding areas. Staff believes that in most cases the restaurant would not be considered a destination use for self-drivers and the proposed changes would not change the parking situation in the area. Historically, required parking spaces for 110 and 114 McFadden have been reduced or waived as part of prior use permit approvals. Due to changes in the methodology for calculating required parking spaces since the 70s and 80s, the proposed project will result in an overall net decrease in required parking spaces, even with the additional dining area during the daytime. The applicant is requesting a continuation of historical parking waivers and will provide 10 onsite parking spaces and continued payment of 22 in-lieu parking space fees. Although the in-lieu parking fee program has been discontinued, existing participants must continue to pay the fees. The current fee is $150.00 per in lieu space per year and records indicate that the owner has paid the required fees for at least 22 years. Pursuant to Section 20.40.130 of the NBMC, these fees are paid to the Citywide Parking Improvement Trust Fund. The property also has a non-conforming parking credit of four spaces based on the original construction of the building in the 1960s (prior to off -street parking requirements). Findings and Considerations Conditional Use Permit Findings In accordance with Section 20.52.020 (Conditional Use Permits and Minor Use Permits), the Planning Commission must make the following findings for approval of 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 the Zoning Code and the Municipal Code. 3.The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity. 10 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 9 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. 5.Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, or 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. Staff believes sufficient facts exist in support of each finding. The continued operation of a restaurant is consistent with the purpose and intent of the Mixed-Use Water 2 (MU-W2) land use designation of the General Plan. The MU-W2 designation applies to waterfront properties in which marine-related uses may be intermixed with general commercial, visitor-serving commercial, and residential dwelling units on the upper floors. Eating and drinking establishments can be expected to be found in this area and are complementary to the surrounding commercial uses. The project has been reviewed and conditioned to ensure that potential conflicts with the surrounding land uses are minimized to the extent possible to maintain a healthy environment for both residents and businesses. The additional use permit restrictions will help make the establishment more compatible with uses in the McFadden Square area and make implementation clearer for employees. Having uniform ABC and CUP conditions will make enforcement more effective for Code Enforcement and the Police Department. The current use permit allows live entertainment and dancing, where the proposed use permit will prohibit live entertainment or dancing, thereby reducing the probability for the establishment to evolve into a nightclub. The establishment’s location, in the heart of a commercial area within the Balboa Peninsula, is appropriate for an operation with the recommended conditions of approval. Alcohol service will continue to be provided as a convenience to the public and the additional hours of operation in the morning would provide an additional choice for patrons. Conditions of approval are included to limit alcohol service in the morning from 9:00 a.m. to 11:00 a.m. For example, service of “bottomless” beverages is prohibited, and any alcoholic beverage purchase will also require the purchase of food. Staff has included a condition that requires the Planning Commission to review the use after one year of operation with a focus on morning alcohol sales to ensure compatibility with surrounding uses. As conditioned, the proposed project will continue to comply with Zoning Code standards for eating and drinking establishments and solid waste storage. Based on the parking information provided and the characteristics of the area, staff believes that a reduction of the required off-street parking is appropriate. It should be noted that no on-site parking is provided for many uses in the immediate area, where the property provides 10 parking spaces. 11 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 10 To help ensure that continued operation of the establishment does not create a detrimental impact during late hours, the operator will be required to secure an operator license and to take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance to areas surrounding the establishment. Should the operator be unable to abide by the conditions of approval or prevent objectionable conditions from occurring, the NBPD will have the authority to modify, suspend, or revoke the operator’s ability to maintain late-hour operations past 11 p.m. NBPD could also reduce the occupant load or modify other operating conditions. Alcoholic Beverage Sales Considerations When reviewing an application to allow an eating or drinking establishment to sell, serve, or give away alcohol, NBMC Section 20.48.090 (Eating and Drinking Establishments) requires the Planning Commission to evaluate the potential impacts upon adjacent uses (within 100 feet as measured between the nearest lot lines) and to consider the proximity to other establishments selling alcoholic beverages for either off-site or on-site consumption. The adjacent uses include mixed-use, residential, restaurants, and retail. The draft resolution includes conditions of approval to minimize negative impacts that the proposed eating and drinking establishment may have to surrounding residential uses and ensure that the use remains compatible with the surrounding community. In order to approve a use permit for alcohol sales, the Planning Commission must also find that the use is consistent with the purpose and intent of Section 20.48.030 (Alcohol Sales). In doing so, the following must be considered: a)The crime rate in the reporting district and adjacent reporting districts as compared to other areas in the City. b)The numbers of alcohol-related calls for service, crimes, or arrests in the reporting district and in adjacent reporting districts. c)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. d)The proximity to other establishments selling alcoholic beverages for either off- site or on-site consumption. e)Whether or not the proposed amendment will resolve any current objectionable conditions. The establishment is located within Reporting District 15, which includes most of the commercial establishments for the Balboa Peninsula between the Newport Boulevard on- ramp to Coast Highway and 20th Street. For a map of the City of Newport Beach Reporting 12 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 11 Districts, see Attachment No. PC 5. Operational characteristics, including the more restrictive hours at night, are conditioned to maintain and improve compatibility with the surrounding land uses. While the area does have a high concentration of alcohol licenses, both establishments are approved for alcoholic beverage service and historically have held a valid ABC license. Therefore, the project will not result in any increase in the number of alcohol licenses but rather a decrease in one license. The new portion of the restaurant (110 McFadden) would keep the location’s existing closing hour of 11 p.m. daily. Therefore, there is not an increase in area used during late hours (after 11 p.m.). The new space will enhance the dining experience without increasing allo wed occupancy of the space, therefore not further contributing to the burden on police services during late night hours. The service of alcoholic beverages provides menu options for customers and potentially enhances the economic viability of the business, while the updated CUP and Operator License will provide greater enforcement tools. A memorandum that includes alcohol-related statistics from 2017 is provided in Attachment No. PC 3. The existing late-night operations at 114 McFadden would be reduced as part of the project. The existing 114 McFadden use permit allows operations until 2:00 a.m., where the proposed project would cease operations at 1:30 a.m. The NBPD does not object to the operational changes with the proposed restrictions on the operational hours and an improved security plan. Additionally, the updated CUP will prohibit live entertainment and dancing allowed by the existing use permit. Although the current operator doesn’t offer these activities, a future operator would otherwise have that option. A detailed discussion of these considerations is provided in the draft resolution for approval (Attachment No. PC 1). Late Hours Considerations Pursuant to NBMC Section 20.48.090 (Eating and Drinking Establishments, the Planning Commission must consider the following potential impacts upon adjacent or nearby uses when reviewing an application to allow late-hour operations: 1.Noise from music, dancing, and voices associated with allowed indoor or outdoor uses and activities; 2.High levels of lighting and illumination; 3.Increased pedestrian and vehicular traffic activity during late and early morning hours; 4.Increased trash and recycling collection activities; 5.Occupancy loads of the use; and 13 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 12 6.Any other factors that may affect adjacent or nearby uses. As discussed, no new late-night hours of operation are proposed for 110 McFadden and 114 McFadden would be required to close at 1:30 a.m. where a 2:00 a.m. closing is currently allowed. Thus, conditions would not be substantially different, as currently experienced from surrounding land uses including the residential buildings at the rear the property and across Court Avenue. The proposed use permit would also prohibit live entertainment (including DJs) and dancing, thereby reducing potential noise impacts to the area. No outdoor activities are proposed, and patron queuing would continue to occur in the front of the building adjacent to McFadden Place. Additionally, the existing and proposed outdoor dining areas and new windows/doors would be closed by 9:00 pm, capturing sound from voices and background music inside the building. Residential and other uses to the rear of the property are separated from the business by Court Avenue and the on-site parking lot which creates a buffer. No new parking stalls will be created as part of the parking lot restriping, and it will mainly be used by employees. There are no attractions or key destinations that would draw patrons towards the back of the building or along Court Avenue. Pedestrians and vehicles are typically found in front of the building along McFadden Place, the municipal parking lot, and other uses in the vicinity such as shops, bars and eating and drinking establishments. No new lighting is proposed on the building at this time. There is existing and adequate outdoor lighting within the adjacent municipal parking lot located at the front of the establishment. Conditions of approval allow the Community Development Director to review lighting onsite should any issues arise with spillover onto adjacent sites. The existing trash enclosure would be updated to improve the appearance and functionality, and to keep the door from swinging into the drive aisles and parking spaces. Coastal Development Permit In accordance with Section 21.52.015 (Coastal Development Permits, Findings and Decision) of the NBMC, the Planning Commission must make the following findings for approval of a coastal development permit: A.Conforms to all applicable sections of the certified Local Coastal Program. B.Conforms with the public access and public recreation policies of Chapter 3 of the Coastal Act if the project is located between the nearest public road and the sea or shoreline of any body of water located within the coastal zone . The proposed remodel and operational changes require a coastal development permit due to the potential intensification of use (e.g. additional seating and hours of operation, combining occupancy of the two tenant spaces) and the continuation of historical parking waivers. The proposed project complies with applicable development standards of the Local Coastal Program (LCP) including, but not limited to, floor area limitation, setbacks, and building height. 1214 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 13 As currently developed, the existing restaurant building and other businesses are located within the view shed of the beach and shoreline. Public views are oriented to the south and west away from the existing building. The proposed commercial remodel complies with all applicable Local Coastal Program (LCP) development standards and maintains a building envelope consistent with the existing neighborhood pattern of development. The increased height of the building does not affect public views because there are no public views through the project site and existing building and because the existing building envelope will be maintained, any public views of the beach or ocean from the subject site would be unchanged. Additionally, the project does not contain any unique features that could degrade the visual quality of the coastal zone. The proposed use requires a waiver of one parking space, where historical use permits authorized a waiver of 22 parking spaces. Therefore, any potential impacts related to the increase in net public area during the daytime would be negligible. Similarly, the additional hours of operation requested in the morning (from 9 a.m. to 11 a.m.) are not peak hours for public access, but a breakfast service will benefit visitors and residents alike. Summary The NBPD has reviewed the proposal and has no objection to the Project, subject to appropriate conditions of approval. The existing use permit was approved in the 1980s and the associated conditions are antiquated. The updated use permit will allow the ABC Conditions and City’s use permit conditions to work in concert, where they currently conflict in some cases. The updated CUP and Operator License provide additional tools for the NBPD to control the use should objectionable activities occur. Staff believes the CUP and CDP findings for approval can be made and the facts in support of the required findings are presented in the draft resolution (Attachment No. PC 1). The elimination of one alcohol license, a reduction in late night hours and the provision of breakfast for visitors and residents is a welcome change. The project also requires building upgrades including upgraded restrooms and the addition of fire sprinklers, which will help improve public safety and provide a benefit to the surrounding area. Alternatives Staff believes the findings for approval can be made and is recommending approval of the project as proposed. However, the following alternatives are available to the Planning Commission: 1.The Planning Commission may suggest specific operational changes that are necessary to alleviate any concerns. If any additional requested changes are substantial, the item could be continued to a future meeting. Should the Planning Commission choose to do so, staff will return with a revised resolution incorporating new findings and/or conditions; or 15 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 14 2.If the Planning Commission believes there are insufficient facts to support the findings for approval, the Planning Commission should deny the application and provide facts in support of denial that would be included in a resolution for denial. 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 allows interior or exterior alterations involving interior partitions, plumbing and electrical conveyances. The Class 1 exemption includes the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use. The Project includes the installation of a door between the two restaurant spaces and a remodel of 110 McFadden to create a retractable roof, a patio with windows, as well as interior improvements and operational adjustments related to business hours and alcoholic beverage service. No new floor area is proposed. The Project also requires improvements to install a sprinkler system for both spaces. Public Notice Notice of this hearing was published in the Daily Pilot, mailed to all owners and residential occupants 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: Submitted by: ______________________________ Liz Westmoreland, Associate Planner ATTACHMENTS PC 1 Draft Resolution for Approval PC 2 Police Department Memorandum PC 3 Project plans 16 Attachment No. PC 1 Draft Resolution for Approval 17 INTENTIONALLY BLANK PAGE18 RESOLUTION NO. PC2020-021 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING CONDITIONAL USE PERMIT NO. UP2017-034 AND COASTAL DEVELOPMENT PERMIT NO. CD2019-054 TO ALLOW THE CONTINUATION OF HISTORICAL PARKING WAIVERS, MODIFY HOURS OF OPERATION, REMOVE RESTRICTIONS REGARDING ALLOWABLE NET PUBLIC AREA DURING THE DAYTIME, AND MERGE WITH ADJACENT RESTAURANT SPACE AT THE PROPERTY LOCATED AT 110 AND 114 MCFADDEN PLACE (PA2017-255) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1.An application was filed by Baja Sharkeez (“Applicant”) and Michael Fazzi (“Owner”) with respect to property located at 110 and 114 McFadden Square, and legally described as Parcel 1 of Block 128 of Resubdivision 493 (respectively referred to as “110 McFadden” and “114 McFadden” and collectively referred to as “Property”), requesting approval of a conditional use permit, coastal development permit, and a continuation of historical parking waivers. 2.Baja Sharkeez restaurant is located at 114 McFadden. The former Sol Grill restaurant is located in a vacant tenant space attached and adjacent to 110 McFadden. Applicant proposes the following changes to 110 McFadden and 114 McFadden: a.Remodel the 110 McFadden restaurant space to modernize the building and create an attached dining room to serve 114 McFadden; b.Install a retractable roof over the 110 McFadden space and open-air patio areas; c.Remove existing restriction regarding maximum allowable net public area during the day (prior to 9 p.m.) at 114 McFadden to allow full use of the space; d.Modify the opening hour for 110 McFadden and 114 McFadden from 11:00 a.m. to 9:00 a.m.; e.No modification to the closing hour for 110 McFadden which is 11:00 p.m.; f.Modify the closing hour for 114 McFadden from 2:00 a.m. to 1:30 a.m. to match the existing Alcoholic Beverage Control (“ABC”) license conditions; g.Modify the existing 110 McFadden ABC license from a Type 41 On- Sale Beer and Wine Eating Place, to a Type 47 On-Sale General – Eating Place to match the existing ABC License at 114 McFadden; and h.Restripe the onsite parking lot in the rear to retain the existing ten (10) parking spaces. Any existing unpermitted encroachments or storage areas in the parking lot would be removed prior to implementation of the project and remain clear for vehicle parking (collectively the “Project”). 19 Planning Commission Resolution No. PC2020-021 Page 2 of 23 01-25-19 3.The Property is designated Mixed-Use Water 2 (MU-W2) by the City of Newport Beach General Plan (“General Plan”) Land Use Element and is located within the Mixed-Use Water (MU-W2) Zoning District. 4.The Property is located within the coastal zone. The City of Newport Beach Local Coast Program Coastal Land Use Plan category is Mixed Use Water (MU-W) and it is located within the Mixed-Use Water Related (MU-W2) Coastal Zoning District. 5.A public hearing was held on June 18, 2020, in the Council Chambers at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the public hearing was given in accordance with California Government Code Section 54950 et seq. (“Ralph M. Brown Act”), Chapter 20.62 and Chapter 21.62 of the Newport Beach Municipal Code (“NBMC”). Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1.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 allows interior or exterior alterations involving interior partiti ons, plumbing and electrical conveyances. The Class 1 exemption includes the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical fe atures, involving negligible or no expansion of use . The Project includes the installation of a door between the two restaurant spaces and a remodel of 110 McFadden to create a retractable roof, a patio with windows, as well as interior improvements and operational adjustments related to business hours and alcoholic beverage service. No new floor area is proposed. The Project also requires improvements to install a sprinkler system for both spaces. SECTION 3. REQUIRED FINDINGS. Alcohol Sales In accordance with Subsection 20.48.030(C)(3) (Alcohol Sales) of the NBMC, the following findings and facts in support of such findings are set forth: Finding: A.The use is consistent with the purpose and intent of Section 20.48.030 (Alcohol Sales) of the Zoning Code. 20 Planning Commission Resolution No. PC2020-021 Page 3 of 23 01-25-19 Facts in Support of Finding: In finding that the Project is consistent with Section 20.48.030 of the NBMC, 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 15 (“RD 15”). The Newport Beach Police Department is required to report offenses of criminal homicide, forcible rape, robbery, aggravated assault, burglary, larceny, theft, and motor vehicle theft (all Part I crimes), combined with all arrests for other crimes, both felonies and misdemea nors (except traffic citations) to the ABC. RD 15 is the highest crime area in Newport Beach. 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 614, which is 357 percent over the City-wide crime count average of 140. The higher crime rate is largely due to the number of visitors to the Balboa Peninsula, the high concentration of restaurants, and the high ratio of non-residential to residential uses clustered in the commercial and mixed-use districts. The McFadden Square area has historically been a business and recreation hub for residents and tourists, drawing a large number of visitors year-round but particularly in the summer months. 2.Since RD 15 has a 20 percent 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 (8th Street to 20th Street) is 23 percent above the City-wide average, RD 12 (B Street to 8th Street) is 9 percent above, and RD 16 (37th Street to 54th Street) is 91 percent above. Of the 38 RDs in Newport Beach, 11 are reported to ABC as high crime areas for 2019. 3.While the area does have a high concentration of alcohol licenses, both establishments are approved for alcoholic beverage service and historically have held a valid ABC license. Therefore, the Project will not result in any increase in the number of alcohol licenses. The new portion of the restaurant (110 McFadden) would keep the location’s existing closing hour of 11 p.m. daily . Therefore, there is not an increase in area used during late hours (after 11 p.m.). The new space will enhance the dining experience without increasing allowed occupancy, therefore not further contributing to the burden on police services during late night hours. The service of alcoholic beverages provides menu options for customers and potentially enhances the economic viability of the business, while the Conditional Use Permit (“CUP”) and Operator License will provide greater enforcement options. 4.The Newport Beach Police Department (“NBPD”) has reviewed the proposal and has no objection to the Project, subject to appropriate conditions of approval. The operation of the establishment includes the approved floor plan, business hours that are more restrictive at night than the current hours identified in the use permit, an improved security plan, and the requirement to obtain an operator license. 21 Planning Commission Resolution No. PC2020-021 Page 4 of 23 01-25-19 Additionally, the updated use permit will allow the ABC Conditions and City’s use permit conditions to work in concert, where they currently conflict in some cases. The Operator License provides an additional tool for the NBPD to control the use, especially should objectionable activities occur at the site. ii.The numbers of alcohol-related calls for service, crimes, or arrests in the reporting district and in adjacent reporting districts. 1.The highest volume crime in this area is simple assault, which may be indicative of an overconsumption of alcohol. The highest volume arrest in the area is Public Intoxication. DUI, Public Intoxication, and liquor law violations make up 32 percent of arrests in this reporting district. In comparison, the figure for neighboring RD 13 is 26 percent, RD 12 is 28 percent, and RD 16 is 29 percent. 2.RD 15 has a higher number of arrests recorded in 201 9, compared to adjacent reporting districts. From January 1, 2019, through December 31, 2019, the NBPD reported 505 arrests in RD 15. Of those, 27 were Part I arrests. There were eight (8) arrests at this Property; however, not every arrest was related to the business and may have been related to a dispatch event in the McFadden Square vicinity. Of the eight (8) arrests, two (2) were Part I Crime Arrests and six were Part II Crime Arrests. These statistics include both properties located at 110 McFadden and 114 McFadden. 3.The NBPD reviewed the application and does not anticipate any significant increase in crime or alcohol-related incidents with the approval of this application subject to the proposed conditions of approval, which include more restrictive hours of operation at night and prohibits live entertainment and dancing. 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 Project is located in a mixed-use zoning district which allows for residential uses when intermixed with nonresidential uses. The nearest residential zoning district and associated residential units are located approximately 50 feet west of the Property across Court Avenue. The existing and proposed front patios as well as the entrances to the business are oriented away from the residences. The existing residential units face the on-site parking lot in the rear of the building. 2.The nearest recreational facilities, the beach and Newport Pier, are located approximately 200 feet to the southwest of the Property. The nearest church, Our Lady of Mount Carmel Church, is located approximately 0.5 miles to the east of the subject property along West Balboa Boulevard. The nearest school, Newport Elementary School, is located 0.7 miles to the east of the subject property along West Balboa Boulevard. The nearest daycare center, Children’s Center by the Sea, is approximately 0.5 miles to the east along West Balboa Boulevard. The Project use is surrounded by other commercial, retail, and office uses on the ground level. 22 Planning Commission Resolution No. PC2020-021 Page 5 of 23 01-25-19 3.The Balboa Peninsula is generally characterized by a high number of visitors, in which commercial and residential zoning districts are lo cated in close proximity to one another and eating and drinking establishments with alcohol service are common. The CUP conditions of approval that eliminate live entertainment and dancing, in conjunction with Operator License conditions of approval will help minimize nuisances that the establishment could have to surrounding uses. This will help to ensure that the use remains compatible with the surrounding community. iv.The proximity to other establishments selling alcoholic beverages for either off -site or on- site consumption. 1.The subject census tract has an approximate population of 5,726 residents with 91 active alcohol licenses, which equates to a per capita ratio of one (1) license for every 63 residents. Per the Business and Professions code, we compa re this per capita ratio to Orange County’s on-sale per capita ratio of one (1) license for every 467 residents. This location meets the legal criteria for undue concentration. 2.The per capita ratio of one license for every 63 residents is higher than all adjacent Census Tracts and the average City-wide ratio. This is due to the higher concentration of commercial land uses, many of them visitor-serving, in McFadden Square, Lido Marina Village and Cannery Village, and lower number of residential population in the RD 15 area. Nearby establishments selling alcohol include the Taco Bell Cantina, Stag Bar, Dory Deli, Blue Beet, Beach Ball, Blackie’s and several others located in the McFadden Square area. 3.While the license-to-resident ratio is higher than average and the Property is located in close proximity to other establishments selling alcoholic beverages, the physical and operational characteristics of the establishment would make the continuation of alcoholic beverage sales appropriate at this location. v.Whether or not the proposed amendment will resolve any current objectionable conditions. 1.No objectionable conditions are presently occurring at the Property. 2.The existing use permit for 114 McFadden has not been updated since 1985, and the conditions of approval are antiquated. Further, the existing permit conditions do not reflect restrictions identified in the conditions of approval for ABC’s Type 47 License. The most notable discrepancies between the ABC license and the current CUP are: 1) the ABC license prohibits live entertainment whereas the CUP does not; and 2) the ABC license requires the establishment to cease serving and allowing patrons to consume alcohol at 1:30 a.m. whereas the CUP does not. The ABC license conditions also allow the business to operate starting at 9 a.m. where the CUP allows operations starting at 11 a.m. This use permit includes the ABC conditions of approval so that both documents work in unison, making compliance less confusing and easier to accomplish for the business owner and employees. 23 Planning Commission Resolution No. PC2020-021 Page 6 of 23 01-25-19 3.A restaurant and bar have been operating at the Property since the early 1970s. The building has been remodeled several times to accommodate different tenants. As part of the Project, the building will be updated to meet current building and safety code requirements including the installation of a fire sprinkler system. 4.All owners, managers, and employees selling alcohol will be required to complete a certified training program in responsible methods and skills for selling alcoholic beverages within 60 days of hire (or for existing staff, within 60 days of approval of this use permit). Approval of this application will require the operator to obtain an Operator License pursuant to Chapter 5.25 (Operator License for Establishments Offering Alcoholic Beverages for On-Site Consumption in Combination with Late Hours, Entertainment, and/or Dance) of the NBMC. The Operator License will provide enhanced tools to control noise, loitering, litter, disorderly conduct, parking/circulation and other potential disturbances that could result from the use, and will provide the PD with means to modify, suspend, or revoke the operator’s ability to maintain late-hour operations. Conditional Use Permit In accordance with Section 20.52.020(F) (Use Permit, Required Findings) of the NBMC, the following findings and facts in support of such findings are set forth: Finding: B.The use is consistent with the General Plan and any applicable specific plan. Facts in Support of Finding: 1.The General Plan land use designation for this site is Mixed-Use Water 2 (MU-W2). The MU-W2 designation applies to waterfront properties in which marine-related uses may be intermixed with general commercial, visitor-serving commercial, and residential dwelling units on the upper floors. The existing eating and drinking establishments with alcohol service and late hours are allowed uses. Such uses can be expected to be found in this area and are complementary to the surrounding commercial and residential uses. 2.The existing building includes both the 110 McFadden and 114 McFadden tenant spaces on a single parcel. The Project currently complies with the maximum floor area ratio allowed for the site and will not result in an increase in the floor area ratio; therefore, it is consistent with the Land Use Element development limitations. 3.The Project remodel and operational changes are for a use that is consistent with General Plan Land Use Policy LU6.8.2 (Component Districts), which emphasizes that McFadden Square should be utilized as one of the primary activity centers within the City. The modifications will allow residents and visitors to enjoy the existing eating and drinking establishment as a visitor- and local-serving convenience. 4.The Property is not part of a specific plan area. 24 Planning Commission Resolution No. PC2020-021 Page 7 of 23 01-25-19 Finding: C.The use is allowed within the applicable zoning district and complies with all other applicable provisions of the Zoning Code and the Municipal Code. Facts in Support of Finding: 1.The Property is located in the Mixed-Use Water Related (MU-W2) Zoning District. The MU-W2 designation applies to waterfront properties in which marine-related uses may be intermixed with general commercial, visitor-serving commercial and residential dwelling units on the upper floors. The existing and proposed use of the site as a restaurant is a permitted use in the zoning d istrict with approval of a conditional use permit. 2.Restaurants have been operating at the Property since the 1970s. The applicant requests increased hours of operation in the morning and full use of the dining area during the daytime. The Project also includes a remodel to merge the two (2) tenant spaces to allow operation as a single restaurant. The Project complies with all development standards and no deviations are requested with the exception of the historical parking waivers. 3.The McFadden Square area is adequately served by the two (2) adjacent municipal lots throughout most of the year and the close proximity to multiple commercial uses and coastal resources will result in shared trips to the project site area. In keeping with historical conditions, walk-up and pass-by patron 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 , especially during the summer season. 4.Under current parking requirements for a food service, eating and drinking establishment, parking is required at a rate of one (1) 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 50 sf of NPA is appropriate for the proposed use based on several physical design and operational characteristics. Ride sharing is common for businesses that serve alcohol, resulting in fewer parked cars. The proposed conditions of approval would prohibit live entertainment and dancing, which also lowers the demand. The restaurant would not be considered a destination use for drivers. Lastly, local residents and visitors in the area will also walk or bike to the restaurant. 5.Historically, required parking spaces for 110 McFadden and 114 McFadden have been reduced or waived as part of prior use permit approvals. Due to changes in the methodology for calculating required parking spaces since the 70s and 80s, the Project will result in an overall net decrease in parking spaces required by Title 20 and Title 21 to serve the Property. The Applicant is requesting a continuation of historical parking waivers for the Property and will provide 10 onsite spaces as well the payment of 22 in- lieu parking fees as authorized by Sections 20.40.130 and 21.40.130 of the NBMC. The 25 Planning Commission Resolution No. PC2020-021 Page 8 of 23 01-25-19 Property also has a non-conforming parking credit of four (4) spaces based on the original construction of the building in th e 1960s (prior to off-street parking requirements). The current NBMC requires nine (9) spaces for 110 McFadden and 28 spaces for 114 McFadden, for a total requirement of 37 spaces, where 36 spaces are provided. Prior use permits reduced required parking by a total of 22 spaces, where current standards only require a reduction of one (1) space, resulting in a net reduction of 21 spaces. Therefore, the proposed expansion of net public area during the daytime at 114 McFadden is not expected to noticeably change the parking demand in the McFadden Square area. 6.The Project has been conditioned to provide a trash enclosure in the rear parking lot, outside of required drive aisles. The existing door swing of the trash enclosure will be modified to no longer encroach into the drive aisle. The trash enclosure will screen trash from Court Avenue and maintain water quality by covering the top of the dumpster. All of the existing outdoor storage and miscellaneous materials in the rear parking lot will be removed prior to building permit final inspection. Finding: D.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 operation of the eating and drinking establishment will be restricted such that alcohol service, sales, and consumption would end at 1:30 a.m., whereas it was previously allowed to operate until 2 a.m. without any restrictions. The closing hour is compatible with other late-night eating and drinking establishments in the area. The NBPD has reviewed the Project and is supportive of the reduced late hour operation and an improved security plan. 2.As the City does not experience significant alcohol related crime during the morning hours, the additional two (2) hours of breakfast service would be negligible. There are several eating and drinking establishments in the vicinity that serve breakfast such as Dory Deli, Seaside Donuts Bakery, Newport Coffee Company, and Banzai Bowls. The additional morning hours would be consistent with other local businesses and serve residents and visitors. 3.The existing use permit for 114 McFadden restricts net public area during the daytime (prior to 9 p.m.) primarily due to parking concerns. The proposed increase in net public area (NPA) during the daytime from 960 to 1,368 square feet would result in a minimal increase of 408 square feet. The increased NPA would have a neglible impact on parking conditions, as the number of spaces required is lower than previously calculated due to methodological changes in the NBMC. The proposed NPA is located within the existing building footprint and would not result in an increase in overall gross floor area, thereby appearing the same from adjacent uses and maintaining compatability. 26 Planning Commission Resolution No. PC2020-021 Page 9 of 23 01-25-19 4.The existing floor plan for 114 McFadden is not changing as a result of the Project. 110 McFadden would be remodeled to create an open-air environment for dining to complement the existing 114 McFadden restaurant. The prior use permit allowed live entertainment and dancing, whereas these activities would be prohibited by the proposed use permit conditions of approval. 5.The Project includes conditions of approval to ensure that potential conflicts are minimized to the greatest extent possible. Although the eating and drinking establishment is located approximately 50 feet from residential units across Court Avenue to the southwest, the building is oriented toward McFadden Square and the municipal parking lots. The 110 McFadden building will be remodeled to include a retractable roof and open-air environment, where the existing building does not have any openings along Court Avenue. To reduce potential noise in the vicinity, all patios, windows, and the open roof shall be completely closed by 9 p.m., daily. Due to weather considerations, it is likely that the windows and doors will be closed in the colder seasons and in the evenings, reducing the likelihood of issues related to sound transmission. ABC conditions currently require that all side/rear windows and doors to be kept closed at all times except for the egress/ingress of employees. ABC has not reviewed the latest design yet that includes a retractable roof and side windows along Court Avenue. Therefore, a condition of approval is included requiring consistency with ABC conditions of approval if they are more restrictive than the condition of approval in this resolution. The Applicant is also required to control trash and litter around the Property. 6.The operational conditions of approval recommended by the Newport Beach Police Department relative to the sale of alcoholic beverages, including an operator license, will help ensure compatibility with the surrounding uses and minimize alcohol related impacts. The Project has been conditioned to ensure the welfare of the surrounding community. The existing use permit was approved in the 1980s, and the conditions of approval do not align with the associated ABC License. Modernizing and updating the existing use permit conditions of approval allows for easier implementation by employees of the business and enforcement by the Newport Beach Police Department, Code Enforcement, and ABC. The Project is conditioned to prohibit the restaurant from operating as a bar, tavern, or nightclub, thereby reducing potential impacts to the neighborhood. 7.As part of the remodel, the Applicant is required to obtain Health Department approval prior to opening for business and will be required to comply with the California Building Code to ensure the safety and welfare of customers and employees within the establishment. The Project includes the construction of a passageway between 114 and 110 McFadden, and other upgrades which prompts the need for fire sprinklers and additional egress doors, thereby improving safety conditions for the subject building and surrounding area. 8.The Property is located in a relatively dense area with multiple uses within a short distance of each other. The McFadden Square area is conducive to a significant amount of walk-in patrons. The area experiences parking shortages in the daytime during the summer months, but parking is typically available during the rest of the year. Two (2) municipal parking lots and on-site parking is available in the area to accommodate the proposed use. 27 Planning Commission Resolution No. PC2020-021 Page 10 of 23 01-25-19 9.The Public Works Department and Building Division have reviewed the proposed design and configuration of parking spaces and determined the design is acceptable upon implementation of the related conditions of approval. 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: E.The site is physically suitable in terms of design, location, shape, size, ope rating 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 Property is developed with an existing commercial building and both tenant spaces are designed for an eating and drinking establishment. The proposed design, size, location, and operating characteristics of the use are compatible with the surrounding neighborhood. The existing tenant space on the Property has historically been utilized by an eating and drinking establishment since the 1970s. Prior to occupation of the space by the current tenant, Baja Sharkeez, the 114 McFadden space primarily operated as a bar with live entertainment and dancing. The 110 McFadden space has operated most recently as a restaurant and market prior to that. 2.Adequate public and emergency vehicle access, public services, and utilities are provided to the Property. Any additional improvements that are necessary to serve the use, such as reconstruction of the existing driveway, have been included as conditions of approval. 3.In conjunction with the remodel of the former Sol Grill that will connect 110 and 114 McFadden, the Applicant is required to install a fire sprinkler system throughout the combined restaurant spaces. This improvement will enhance the safety of the existing buildings and benefit the surrounding structures and area. 4.A building permit is required prior to any construction. The Project will comply with all Building, Public Works, and Fire Codes. All ordinances of the City and all conditions of approval will be complied with. Finding: F.Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, or 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: 28 Planning Commission Resolution No. PC2020-021 Page 11 of 23 01-25-19 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. 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 establishment will continue to provide dining with the service of alcoholic beverages as a public convenience to the surrounding neighborhood and visitors to the area. This will continue to help revitalize the Property and provide an economic opportunity for the property owner to update the building and surrounding area, which best serve the quality of life for the surrounding visitor- and local-serving community. 3.The existing 110 McFadden tenant space is currently vacant and would be remodeled as part of the Project. The Project would include updates to meet current building code and fire code standards including the provision of sprinklers and compliant egress doors to protect patrons and the surrounding area. Off-Street Parking Reduction Both 110 McFadden and 114 McFadden have been granted historical waivers of parking spaces. In accordance with NBMC Section 20.40.110 (Off-Site Parking) and 21.40.110 (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: A.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 for 110 McFadden were based on the gross floor area of the restaurant because it was primarily a take-out use. The existing use permit (UP3034A) requires a parking rate of one (1) space for every 50 square feet of gross floor area plus one (1) space for each employee. The resulting requirement was 26 parking spaces. The restaurant provided four (4) parking spaces via in-lieu parking fees, the remaining 22 parking spaces were waived by the Planning Commission. 2.The Property also includes an on-site parking lot containing 10 parking spaces, which has mainly served employees of the business. However, the 110 and 114 McFadden tenants both utilize this lot, and the spaces appear to have “double-counted” under the existing use permits (except 11 p.m. to 2 a.m. when 110 McFadden was closed). In an effort to accurately analyze parking for the future scenario, the 10 on -site parking spaces are only counted for the purpose of serving 114 McFadden. 3.Under proposed conditions, the remodeled 110 McFadden space will contain a net public area of 445 square feet. Using a parking rate of one space per 50 square feet of 29 Planning Commission Resolution No. PC2020-021 Page 12 of 23 01-25-19 NPA per today’s standards, the resulting parking demand is nine (9) parking spaces. With the continued payment of four (4) in-lieu parking fees, the resulting waiver for the use would be five (5) spaces. Therefore, the proposed use would require a continued waiver of five (5) spaces versus a waiver of 22 spaces previously approved. The result is a net reduction in of 17 required parking spaces for this portion of the project. Thus, no additional parking is required as part of the remodel and merger of the 110 McFadden space with the 114 McFadden space. 4.The existing use permit for the 114 McFadden space (UP1783D) includes separate parking requirements for “daytime” (11 a.m. to 9 p.m.) and “nighttime” (9 p.m. to close) operations. The use permit restricts daytime operations, when demand in the area is highest in summer. The daytime parking rate identified in the use permit is one (1) space per 40 square feet of net public area. The NPA during the daytime was restricted to 960 square feet (sf) resulting in a demand of 24 parking space s. At the time, this daytime restriction was simpler and more realistic to enforce, because the business at that time “Jose Murphy’s” was more of a nightclub/bar that mainly operated at night. The design included a platform for live entertainment and dancing that was only used utilized after 9 p.m., so the space and timing restriction were appropriate for that use. Applicant is a full-service restaurant with alcohol (Type 47 ABC License) and there is no clear physical division to restrict the space during the daytime. This creates regulatory challenges for City staff as well as employees of the business. 5.The nighttime parking requirement for 114 McFadden was higher per UP1783D (approved in 1985) as the NPA increased from 960 sf during the day to approximately 1,421 sf after 9:00 pm. The parking requirement was also higher, at a rate of one (1) space per 35 sf of NPA for the bar/lounge area and one (1) space per for 40 sf for the dining area. According to the use permit this resulted in a requirement of 37 spaces. The Property provided 10 parking spaces on-site in the rear parking lot, 18 spaces via in-lieu parking fees for the public lot, and five (5) spaces via an informal offsite agreement at Playa Realty (102 McFadden). The Property also had a non-conforming parking credit of four (4) spaces, which was grandfathered from original construction of the building in the 1960’s (prior to the requirement for on-site parking). Therefore, through the methods identified above, the Project met the requirement for 37 parking spaces. 6.The conditions of approval prohibit dancing and live entertainment which would reduce the parking demand for the Property from the existing use permit, particularly at night. A uniform parking rate of one (1) space per 50 square feet (sf) of NPA is appropriate for the business during the daytime and nighttime. The proposed NPA for the 114 McFadden space is 1,368 sf resulting in a parking requirement of 28 parking spaces. Therefore, the parking requirement increases by four (4) spaces during the daytime and is reduced by nine (9) spaces at night. The 28 spaces will be provided via the 10 on-site spaces and 18 in-lieu parking fees. The Project would also continue to receive the four (4)space nonconforming parking credit which results in the provision of 32 parking spaces for the 114 McFadden building where only 28 spaces are required, resulting in a surplus of four (4) spaces. 30 Planning Commission Resolution No. PC2020-021 Page 13 of 23 01-25-19 7.The 110 McFadden and 114 McFadden spaces will be combined as part of the Project and the parking will now be regulated in one consolidated use permit. The result is a combined requirement of 37 parking spaces and the provision of 36 parking spaces. The 36 parking spaces shall be provided via 10 onsite spaces, 22 in-lieu fees, and a four (4) space nonconforming credit. The remaining one (1) parking space would be waived as a continuation of historical parking reductions. 8.It is most likely that the employees and frequent patrons of the business will utilize the parking spaces to the rear of the Property since they are familiar with the site and how to access the parking lot. This will reduce the number of employees utilizing the public lots. 9.The continuation of historical parking reductions remains appropriate for the restaurant, even with the use of the full dining area during the daytime because the overall parking demand for both restaurants has been reduced. The original use permits required a waiver of 22 spaces, where the current use permit requires the wavier of one space. In addition, in keeping with historical conditions, walk -up and bicycle 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 137-parking-space McFadden Square municipal parking lot is located adjacent to the project site. Also located within walking distance is the Newport Pier municipal parking lot which contains approximately 260 parking spaces. The parking lots have proven to be sufficient to support the existing restaurant and nearby businesses. 10.Furthermore, by 9:00 p.m., many of the surrounding businesses close, and at 10:00 p.m. the beach is closed to the public thereby creating a surplus of public parking spaces. The closure of these attractions coincides with the busiest time of the week for Baja Sharkeez, which is weekend nights. Additionally, ride sharing is common for businesses that serve alcohol. Coastal Development Permit In accordance with Section 21.52.015 (Coastal Development Permits, Findings and Decision) of the Newport Beach Municipal Code, the following findings and facts in support of such findings are set forth: Finding: A.Conforms to all applicable sections of the certified Local Coastal Program. Facts in Support of Finding: 1.The Project requires a coastal development permit due to the potential intensification of use at the site and the continuation of historical parking waivers. The Project complies with applicable development standards including, but not limited to, floor area limitation, setbacks, and height. 31 Planning Commission Resolution No. PC2020-021 Page 14 of 23 01-25-19 2.The structure complies with the required setbacks, which are zero (0) feet along all property lines. 3.The maximum floor area ratio is 0.5 (3,961 square feet). The remodeled building has a gross floor area of approximately 3,629 square feet. 4.The proposed retractable roof element is approximately 17 feet 6 inches maximum and the existing roof for 114 McFadden is approximately 19 feet from the finished floor elevation of 9.01 feet North American Vertical Datum of 1988 (NAVD88), which complies with the maximum height limitation of 26 feet for a flat roof. 5.The Project requires a waiver of (1) one parking space, where historical use permits authorized a waiver of 22 parking spaces. Therefore, any potential impacts related to the increase in net public area during the daytime would be negligible. Similarly, the additional hours of operation requested in the morning (from 9 a.m.-11 a.m.) are not peak hours for public access. 6.The neighborhood is predominantly developed with commercial and mixed-use structures with scattered multi-family zoning to the southwest. The proposed design, bulk, and scale for the remodel is consistent with the existing neighborhood pattern of development. 7.The Project site is separated from the bay (the nearest body of water) by Court Avenue, McFadden Square, commercial buildings, and an approximately 200 -foot wide beach. The finished floor elevation of the first floor of the structure is 9.01 feet (NAVD88), which complies with the minimum 9-foot (NAVD88) elevation standard for new structures. The identified distances from the coastal hazard areas will help to ensure the Project is reasonably safe for the economic life of the structure. 8.The Property is located in an area known for the potential of seismic activity and liquefaction. All projects are required to comply with the California Building Code (“CBC”) and Building Division standards and policies. Geotechnical investigations specifically addressing liquefaction are required to be reviewed and approved prior to the issuance of building permits. Permit issuance is also contingent on the inclusion of design mitigation identified in the investigations. Construction plans are reviewed for compliance with approved investigations and CBC prior to building permit issuance. 9.The Property is located within 515 feet of coastal waters. A Construction Erosion Control Plan was provided to implement temporary Best Management Practices (BMPs) during construction to minimize erosion and sedimentation and to minimize pollution of runoff and coastal waters derived by construction chemicals and materials. The Project design also addresses water quality through the inclusion of a post-construction drainage system that includes drainage and percolation features designed to retain dry weather and minor rain event runoff on-site. Any water not retained on-site is directed to the City’s storm drain system. 10.The Project is not located adjacent to a coastal view road or coastal viewpoint as identified in the Coastal Land Use Plan. The nearest coastal viewpoint is on the end of the Newport Pier and not visible from the site due to distance and an intervening building that obstructs 32 Planning Commission Resolution No. PC2020-021 Page 15 of 23 01-25-19 views. The Project is located adjacent to McFadden Square, which is accessible to the public and provides opportunities to view and access the beach as well as other amenities. As currently developed, the existing restaurant building and other businesses are located within the view shed of the beach and shoreline. However, the proposed commercial remodel complies with all applicable Local Coastal Program (“LCP”) development standards and maintains a building envelope consistent with the existing neighborhood pattern of development. Because the existing building envelope will be maintained, any public views of the beach or ocean from the subject site would remain the same. Additionally, the project does not contain any unique features that could degrade the visual quality of the coastal zone. 11.The proposed remodel at 110 McFadden would include the removal of the existing solid wall along Court Avenue, which would be replaced with a patio area, glass barriers, and windows. The Project would modernize the existing, vacant building and revitalize the local neighborhood. The building height would remain approximately the same as the existing flat roof and any proposed rooftop equipment would be screened from view of pedestrians and motorists in the vicinity. Therefore, the Project does not have the potential to degrade the visual quality of the Coastal Zone or result in significant adverse impacts to existing public views. Finding: B.Conforms with the public access and public recreation policies of Chapter 3 of the Coastal Act if the project is located between the nearest public road and the sea or shoreline of any body of water located within the coastal zone. Fact in Support of Finding: 1.The Project is located between the nearest public road and the sea or shoreline. Implementation Plan Section 21.30A.040 requires that the provision of public access bear a reasonable relationship between the requirement and the project’s impact and be proportional to the impact. In this case, the Project remodels an existing restaurant space and modifies the existing operations. No additional parking spaces are required to serve the business as proposed. Therefore, the Project does not involve a change in land use, density or intensity that will result in increased demand on public access and recreation opportunities. Furthermore, the Project is designed and sited (appropriate height, setbacks, etc.) so as not to block or impede existing public access opportunities. The updated design would modernize the appearance of the building to help revitalize the area. Increased hours of operation in the morning and full use of the restaurant during the daytime would serve as an amenity to residents and visitors in the area. 2.Vertical access to the beach is available adjacent to the Project within the McFadden Place plaza and Newport Pier. Lateral access is available on the beach to the west of the site. The public beach is also the start of a six (6) foot wide public sidewalk providing lateral access and views of the ocean. The Project does not include any features that would obstruct access along these routes. 33 Planning Commission Resolution No. PC2020-021 Page 16 of 23 01-25-19 SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1.The Planning Commission of the City of Newport Beach hereby finds this Project is categorically exempt from the California Environmental Quality Act 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 Planning Commission of the City of Newport Beach hereby approves Conditional Use Permit No. UP2017-034, and Coastal Development Permit No. CD2019-054 subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. 3.This action shall become final and effective 14 days following the date this Resolution was adopted unless within such time an appeal or call for review is filed with the an appeal is filed with the City Clerk in accordance with the provisions of Title 20 Planning and Zoning and Title 21 Local Coastal Implementation Plan, of the Newport Beach Municipal Code. Final action taken by the City on the Coastal Development Permit may be appealed to the Coastal Commission in compliance with Section 21.64.035 of the City’s certified LCP and Title 14 California Code of Regulations, Sections 13111 through 13120, and Section 30603 of the Coastal Act. 4.This resolution supersedes Planning Commission Use Permit No. 3034 (Amended) and Use Permit No. 1783 (Amended) which upon vesting of the rights authorized by these applications shall become null and void. PASSED, APPROVED, AND ADOPTED THIS 18th DAY OF JUNE, 2020. AYES: NOES: ABSTAIN: ABSENT: BY:_________________________ Peter Koetting, Chairman BY:_________________________ Lee Lowrey, Secretary 34 Planning Commission Resolution No. PC2020-021 Page 17 of 23 01-25-19 EXHIBIT “A” CONDITIONS OF APPROVAL (Project-specific conditions are in italics) Planning Division 1.The development shall be in substantial conformance with the approved site plan, floor plans and building elevations stamped and dated with the date of this approval (except as modified by applicable conditions of approval). 2.Sales, service, and consumption of alcoholic beverages between the hours of 9 am and 11 am shall only be allowed on weekends (Friday through Sunday), and shall occur only in conjunction with the purchase of food from the regular menu. 3.Sales, service, and consumption of alcoholic beverages in the original space (11 4 McFadden Place) shall be permitted only between the hours of 9 a.m. and 1:30 a.m . 4.Sales, service, and consumption of alcoholic beverages in the newly expanded restaurant space (110 McFadden Place) shall be permitted to 11 p.m. only. 5.Sales, service and consumption of food and alcoholic beverages shall be permitted in the patio area only between the hours of 9 a.m. and 9 p.m. each day of the week. 6.Free refills and/or “all you can drink” deals on alcohol shall be prohibited. 7.The Planning Commission shall review this Conditional Use Permit within one year of the date of approval, with a focus on alcohol service between the hours of 9 am and 11 am. 8.The rear and side doors and windows shall be kept closed at all times during the operation of the premises, except to allow entry, during emergencies and/or to permit deliveries. Said doors not to consist solely of a screen door or ventilated screen door. Prior to 9 p.m., this condition shall not apply to side windows and the retractable roof if approved by ABC. 9.The Project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 10.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. 11.Prior to final building permit inspection, any existing outdoor storage within the onsite parking lot shall be removed to the satisfaction of the Planning Division. 35 Planning Commission Resolution No. PC2020-021 Page 18 of 23 01-25-19 12.All proposed signs shall be in conformance with provisions of Chapter 20.42 (Signs) of the Newport Beach Municipal Code (“NBMC”). 13.Use Permit No. UP2017-034 and Coastal Development Permit No. CD2019-054 shall expire unless exercised within 24 months from the date of approval as specified in Section 20.91.050 of the Newport Beach Municipal Code, unless an extension is otherwise granted. 14.This Use Permit and Coastal Development 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. 15.Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to this Use Permit and/or Coastal Development Permit or the processing of a new Use Permit and/or Coastal Development. 16.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 the building permits. 17.Prior to the issuance of a building permit, the applicant shall submit to the Planning Division an additional copy of the approved architectural plans for inclusion in the project file. The plans shall be identical to those approved by all City departments for building permit issuance. The approved copy shall include architectural sheets only and shall be reduced in size to 11 inches by 17 inches. The plans shall accurately depict the elements approved by this Use Permit and Coastal Development Permit and shall highlight the approved elements such that they are readily discernible from other elements of the plans. 18.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. 19.Prior to the issuance of a building permit, the Applicant shall pay any unpaid administrative costs associated with the processing of this application to the Planning Division. 20.All noise generated by the Project shall comply with the provisions of 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: 36 Planning Commission Resolution No. PC2020-021 Page 19 of 23 01-25-19 Between the hours of 7:00AM and 10:00PM Between the hours of 10:00PM and 7:00AM 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 21.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. 22.Construction activities shall comply with Section 10.28.040 of the NBMC, which restricts hours of noise-generating construction activities that produce noise to between the hours of 7 a.m. and 6:30 p.m., Monday through Friday . Noise-generating construction activities are not allowed on Saturdays, Sundays or Holidays. 23.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. 24.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. 25.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 Property. 26.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 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). 27.Deliveries and refuse collection for the facility shall be prohibited between the hours of 10 p.m. and 7 a.m. on weekdays and Saturdays and between the hours of 10 p.m. and 9 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 . 28.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. 29.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 37 Planning Commission Resolution No. PC2020-021 Page 20 of 23 01-25-19 attract large crowds, include any form of on-site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. 30.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 Baja Sharkeez Remodel Project including, but not limited to, UP2017-034, CDP2019-054, and OL 2017-006 (PA2017-255). 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. Life Safety Services (Fire) Division 31.As per California Building Code (CBC) Section 407.1 2016 California Existing Building Code, no change shall be made in the use or occupancy of any building unless such building is made to comply with the requirements of the CBC for the use or occupancy. Changes in use or occupancy in a building or portion there of shall be such that the existing building is no less compliant with the provisions of this code than the existing building or structure was prior to the change. Subject to the approval of the building official, the use or occupancy of existing buildings shall be permitted to be changed and the building is allowed to be occupied for purposes in oth er groups without conforming to all of the requirements of this code for those groups, provided the new or proposed use is less hazardous, based on life and fire risk, than the existing use. The proposed occupancy increase places this structure in a higher life risk, thus the requirements of CBC will need to be met in order for an occupancy increase. 32.An automatic sprinkler system shall be provided for fire are as containing Group A-2 occupancies and intervening floors of the building where the fire area has an occupant load of 100 or more per California Fire Code (CFC) Section 903.2.1.2. Due to the increase of floor area, the occupancy will need to meet current code requirements and be required to provide fire sprinklers in the existing tenant space (114 McFadden) and the proposed space (110 McFadden). 33.Where carbon dioxide storage tanks, cylinders, piping and equipment are located indoors, rooms or areas containing carbon dioxide storage tanks, cylinders, piping and fitting and other areas where a leak of carbon dioxide can collect shall be provided with either ventilation in accordance with CFC Section 5307.5 or an emergency alarm system in accordance with CFC Section 5307.5.2. 38 Planning Commission Resolution No. PC2020-021 Page 21 of 23 01-25-19 Building Division 34.The Applicant is required to obtain all applicable permits from the City’s Building Division and Fire Department. The construction plans must comply with the most recent, City- adopted version of the California Building Code. The construction plans must meet all applicable State Disabilities Access requirements. Approval from the Orange County Health Department is required prior to the issuance of a building permit. 35.Egress doors shall swing in the direction of travel due to the proposed number of occupants. 36.Total building occupancy load shall be verified prior to building permit issuance upon the submission of complete, fully dimensioned plans to the Building Division. 37.Fire sprinklers are required. Public Works Department 38.The door swing shall not project into the public right of way or the required dimensions of the parking spaces. This applies to all doors. 39.The trash enclosure gate swing shall not project into the drive aisle or parking spaces. 40.The driveway approach along the Court Avenue frontage shall be reconstructed to accommodate a minimum four-foot accessible (ADA) path across the driveway. A pedestrian easement shall be required if portions of the ADA path are on private property. 41.No private encroachments are permitted within the public right of way. Any existing encroachments shall be removed prior to permit issuance. Police Department 42.The Property shall be maintained as a bona fide restaurant and shall provide a menu containing an assortment of foods normally offered in such restaurants. All items on the menu shall be available up until ½ hour before closing. 43.During normal business hours, at least 50 percent of the premises seating shall be prepared for food service and possess condiment dispensers with which to serve meals to the public. 44.The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The license shall at all times maintain records which reflect separately the gross sale of food and gross sales of alcoholic beverages of the licensed premises. Said records shall be kept no less frequently than on a quarterly basis and shall be made available to the Newport Beach Police Department on demand. 39 Planning Commission Resolution No. PC2020-021 Page 22 of 23 01-25-19 45.No “Happy Hour” type of reduced price alcoholic beverage promotion shall be allowed after 7 p.m. each day of the week. 46.There shall be no promotional drink specials or reduced drink specials after 7 p.m. each day of the week. 47.The sale of alcoholic beverages for consumption off the premises is strictly prohibited. 48.No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee(s). 49.Entertainment shall not be audible beyond the area under the control of the licensee(s). 50.The use of any amplifying system or device is prohibited on the patio and the use of any said system and/or device within the interior of the licensed premises shall not be audible on the exterior of the licensed building. 51.There shall be no live entertainment of any type, including, but not limited to live music, disc jockey or patron dancing. 52.Petitioner shall not require an admission charge or cover charge, nor shall there be a requirement to purchase a minimum number of drinks. 53.Petitioner shall not share any profits or pay any percentage or commission to a promoter or any other person, based on monies collected as a door charge, cover charge, or any other form of admission charge, including minimum drink orders, or sale of drinks. 54.No beer and/or distilled spirits shall be sold in glass bottles or glass containers larger than 12 ounces. 55.There shall be no exterior advertising or sign of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages or signs which are clearly visible to the exterior shall constitute a violation of this condition. 56.Licensees not exercising the privileges of their [ABC] license until after 9 p.m. are deemed not exercising the privileges of their [ABC] license in good faith and said method of operation shall be deemed contrary to public welfare and morals and an attempt on the part of the licensee to circumvent the provisions of Section 23038 of the Business and Professions Code. For example, a location licensed to operate as a restaurant, then does not serve food. 57.No portion of the Property shall be deemed to be “private” for the purpose of dispersing alcoholic beverages to selected patrons. In no case, shall the licensee recognize any form of membership card, keys or passes which would entitle the holder entry or preferential admittance, service or exclusive use of any portion of the mentioned premises. 40 Planning Commission Resolution No. PC2020-021 Page 23 of 23 01-25-19 58.The petitioner(s) shall be responsible for maintaining free of litter the area adjacent to the premises over which they have control. 59.Any graffiti painted or marked upon the premises or on any adjacent area under the control of the licensee(s) shall be removed or painted over within 48 hours of being applied. 60.No games or contests requiring or involving the consumption of alcoholic beverages shall be allowed. 61.There shall be no dancing allowed on the Property. 62.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 may be cause for revocation of the use permit. 63.All owners, managers and employees must abide by all laws and conditions of the Alcoholic Beverage Control License. 64.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 (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 6 0 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. 65.Strict adherence to maximum occupancy limits is required. 66.The Applicant shall maintain a security recording system with a 30 -day retention and make those recording available to police upon request. 67.Management shall maintain an operational log of daily activities related to the sale and service of alcoholic beverages, as well as any additional security actions. Management shall make this log available to the Newport Beach Police Department upon request. 41 INTENTIONALLY BLANK PAGE42 Attachment No. PC 2 Police Department Memorandum 43 INTENTIONALLY BLANK PAGE44 45 46 47 48 49 50 51 52 53 54 Attachment No. PC 3 Project Plans 55 INTENTIONALLY BLANK PAGE56 PA2017-255Project Plans57 2% SLOPEPA2017-255Project Plans58 2% SLOPE2% SLOPEPA2017-255Project Plans59 PA2017-255Project Plans60 VRO JULOOPA2017-255Project Plans61 NEW ELEVATIONPA2017-255Project Plans62 PA2017-255Project Plans63 NEW SECTIONCENTERLINE OF MC FADDEN PLACE CENTERLINE OFCOURT ST PA2017-255Project Plans64 2% SLOPEPA2017-255Project Plans65 EROSION CONTROL BMPsTEMPORARY SEDIMENT CONTROLWIND EROSION CONTROLWASTE MANAGEMENT AND MATERIALS POLLUTION CONTROLTRACKING CONTROLNON-STORMWATER MANAGEMENTYEAR-ROUND BMP REQUIREMENTSLEGENDNOTE139 Avenida NavarroSan Clemente, CA 92672949.492.8586www.toalengineering.comCIVIL ENGINEERINGLAND SURVEYINGSTORMWATER QUALITYPA2017-255Project Plans66 From:Suzanne Scofield To:Planning Commissioners Subject:Baja Sharkeez remodel Date:Wednesday, June 17, 2020 3:01:41 PM [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Why are Sharkeez hours of operation not the same as other bar/restaurants on the Penninsula that back to residential properties, such as Malarkys & Helmsman Ale House? 11pm weekdays, 1 or 2am weekends? And why are they allowed to use their back door until close (leaving it open sometimes) moving beer kegs, etc., employees talking in the parking lot? And now they have outside seating in their parking lot when, several years ago, Malarkys was denied an outside patio in their parking lot that abuts the back of the Landing shopping center...but around the corner from residential? I have owned 2004-2006 Court Ave since 1996. It is a 4 unit residential apt bldg. My parking lot adjoins Sharkeez parking lot, divided only by privacy fencing. 2 units are on Sharkeez side &, over the years, each tenant has complained about the noise in the parking lot. All 4 tenants have complained of drunks urinating on their cars or throwing up in the parking lot. And Sharkeez promises to me, over the years, to not let this happenen, have not been enforced. It is way passed time for their hours to be 11pm weekdays & 1am on weekends. And, they should have strick rules about using the back door, just as Helmsman Ale House has. Please make Sharkeez conform to these rules. I do my part by renting only to quiet, responsible tenants, who are an asset to the neighborhood. Please do not continue to allow Sharkeez to be exempt from rules that should have applied to them originally. Thank you for addressing this issue. Sue Scofield 400 Clubhouse Ave, NB 949-394-9922 cell suebscofield@gmail.com Planning Commission - June 18, 2020 Item No. 2a Additional Materials Received Baja Sharkeez Remodel (PA2017-255) 110 and 114 McFadden Place Planning Commission Public Hearing June 18, 2020 Baja Sharkeez Project Planning Commission - June 18, 2020 Item No. 2b Additional Materials Presented at Meeting Baja Sharkeez Remodel (PA2017-255) Introduction Application Includes: Conditional Use Permit Coastal Development Permit Parking Waiver Operator’s License (Chief of Police) Community Development Department -Planning Division 2 Planning Commission - June 18, 2020 Item No. 2b Additional Materials Presented at Meeting Baja Sharkeez Remodel (PA2017-255) Location Community Development Department -Planning Division 3 Planning Commission - June 18, 2020 Item No. 2b Additional Materials Presented at Meeting Baja Sharkeez Remodel (PA2017-255) Community Development Department -Planning Division 4 Existing Conditions Planning Commission - June 18, 2020 Item No. 2b Additional Materials Presented at Meeting Baja Sharkeez Remodel (PA2017-255) Proposed Physical Changes Remodel and Expansion Community Development Department -Planning Division 5 Planning Commission - June 18, 2020 Item No. 2b Additional Materials Presented at Meeting Baja Sharkeez Remodel (PA2017-255) 6 Proposed Parking Planning Commission - June 18, 2020 Item No. 2b Additional Materials Presented at Meeting Baja Sharkeez Remodel (PA2017-255) Existing Use Permits Sharkeez Suite 1980s -bar/nightclub style operator Sharkeez took over in 1990s 11:00 am to 2:00 am, daily Live entertainment/dancing Limited public area during daytime Type 47 ABC License Sol Grill Suite 1980s –mostly take-out 11:00 am to 11:00 pm, daily Type 41 ABC License Community Development Department -Planning Division 7 Planning Commission - June 18, 2020 Item No. 2b Additional Materials Presented at Meeting Baja Sharkeez Remodel (PA2017-255) Proposed Operational Changes One consolidated UP Modernize conditions Match ABC conditions Type 47 ABC license Allow breakfast service @ 9:00 am vs. 11:00 am Close at 1:30 am vs. 2:00 am (original Sharkeez) Close at 11:00 pm (new Sharkeez) Full use of interior during daytime Waive one parking space Continue to pay in-lieu fees Community Development Department -Planning Division 8 Planning Commission - June 18, 2020 Item No. 2b Additional Materials Presented at Meeting Baja Sharkeez Remodel (PA2017-255) Notable Conditions No bottomless mimosas/free refills on alcohol One year review Clean up parking lot Close all doors/windows/roof by 9:00 pm No live entertainment/dancing *Memo to revise 3 conditions Community Development Department -Planning Division 9 Planning Commission - June 18, 2020 Item No. 2b Additional Materials Presented at Meeting Baja Sharkeez Remodel (PA2017-255) Typical Day 9:00 am open for breakfast 9:00 pm close all openings 10:30 pm last call at new Sharkeez 11:00 pm close new Sharkeez ~1:00 am last call at original Sharkeez 1:30 am close original Sharkeez Community Development Department -Planning Division 10 Planning Commission - June 18, 2020 Item No. 2b Additional Materials Presented at Meeting Baja Sharkeez Remodel (PA2017-255) Summary Modernize building and use permit Match UP and ABC conditions Eliminate one alcohol license Decrease late night hours (1:30 am vs 2:00 am) Enhance safety features of the building Improve accessibility Operator’s License Community Development Department -Planning Division 11 Planning Commission - June 18, 2020 Item No. 2b Additional Materials Presented at Meeting Baja Sharkeez Remodel (PA2017-255) Recommended Action Conduct a public hearing Find project exempt from CEQA Adopt Resolution PC2020-02 1 approving project Community Development Department -Planning Division 12 Planning Commission - June 18, 2020 Item No. 2b Additional Materials Presented at Meeting Baja Sharkeez Remodel (PA2017-255) For more information Contact Questions? Liz Westmoreland, Associate Planner 949-644-3234 lwestmoreland@newportbeachca.gov www.newportbeachca.gov Community Development Department -Planning Division 13 Planning Commission - June 18, 2020 Item No. 2b Additional Materials Presented at Meeting Baja Sharkeez Remodel (PA2017-255) Community Development Department -Planning Division 14 2. Sales,service,and consumption of alcoholic beverages between the hours of 9 am and 11 am shall only be allowed on weekends (Friday through Sunday),and certain holidays (New Year’s Day,Saint Patrick’s Day, Cinco de Mayo, Memorial Day,4th of July,and Labor Day)and shall occur only in conjunction with the purchase of food from the regular menu. 42.The Property shall be maintained as a bona fide restaurant and shall provide a menu containing an assortment of foods normally offered in such restaurants. All items At least 75%of items on the menu shall be available up until ½hour before closing. 55.Except for table tents and menus,there shall be no exterior advertising or sign of any kind or type,including advertising directed to the exterior from within,promoting or indicating the availability of alcoholic beverages or signs which are clearly visible to the exterior shall constitute a violation of this condition. Planning Commission - June 18, 2020 Item No. 2b Additional Materials Presented at Meeting Baja Sharkeez Remodel (PA2017-255) Baja Sharkeez Sol Room Dining & Social Experience •The new space is an extension of the current space, but with a significantly different feeling. •The purpose of Sol Room, in addition to increasing food sales and consumption, will be for guests who want a higher level of service in a more subdued and relaxed atmosphere, akin to gathering at a friend’s beach house. •The Sharkeez side atmosphere has self-service, high tables, more people standing up eating, drinking and socializing. •The Sol space will be a full service, comfortable restaurant atmosphere with low tables more conducive to eating in a cool, sophisticated coastal contemporary setting. •This space will be unique compared to other restaurants in the area due to its charming open air feel during the daytime and early evening, yet it can be completely closed on all sides and the roof to mitigate any noise issues later at night. •We feel this space will be a big hit with locals and tourists alike. Planning Commission - June 18, 2020 Item No. 2c Additional Materials Presented at Meeting Baja Sharkeez Remodel (PA2017-255) Planning Commission - June 18, 2020 Item No. 2c Additional Materials Presented at Meeting Baja Sharkeez Remodel (PA2017-255) Planning Commission - June 18, 2020 Item No. 2c Additional Materials Presented at Meeting Baja Sharkeez Remodel (PA2017-255) Planning Commission - June 18, 2020 Item No. 2c Additional Materials Presented at Meeting Baja Sharkeez Remodel (PA2017-255) Planning Commission - June 18, 2020 Item No. 2c Additional Materials Presented at Meeting Baja Sharkeez Remodel (PA2017-255) Planning Commission - June 18, 2020 Item No. 2c Additional Materials Presented at Meeting Baja Sharkeez Remodel (PA2017-255) Planning Commission - June 18, 2020 Item No. 2c Additional Materials Presented at Meeting Baja Sharkeez Remodel (PA2017-255) Planning Commission - June 18, 2020 Item No. 2c Additional Materials Presented at Meeting Baja Sharkeez Remodel (PA2017-255) Community Development Department CITY OF NEWPORT BEACH COMMUNITY DEVELOPMENT DEPARTMENT 100 Civic Center Drive Newport Beach, California 92660 949 644-3200 newportbeachca.gov/communitydevelopment Memorandum To: Chair Koetting and Planning Commissioners From: Liz Westmoreland, Associate Planner Date: June 18, 2020 Re: Baja Sharkeez Revised Conditions of Approval (PA2017-255) Dear Chair Koetting and Planning Commissioners, The applicant has reviewed the draft conditions of approval and requests modifications to three conditions. Their justification request is attached. Staff is agreeable to most of their changes and recommends the conditions be modified as follows: 2.Sales, service, and consumption of alcoholic beverages between the hours of 9 am and 11 am shall only be allowed on weekends (Friday through Sunday), and certain holidays (New Year’s Day, Saint Patrick’s Day, Cinco de Mayo, Memorial Day, 4th of July, and Labor Day) and shall occur only in conjunction with the purchase of food from the regular menu. 42.The Property shall be maintained as a bona fide restaurant and shall provide a menu containing an assortment of foods normally offered in such restaurants. All items At least 75% of items on the menu shall be available up until ½ hour before closing. 55.Except for table tents and menus, there shall be no exterior advertising or sign of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages or signs which are clearly visible to the exterior shall constitute a violation of this condition. The applicant requests that Condition No. 2 be modified to remove “and shall only occur in conjunction with the purchase of food form the regular menu”. Staff does not agree with this change. Planning Commission - June 18, 2020 Item No. 2d Additional Materials Received At Meeting - Staff Baja Sharkeez Remodel (PA2017-255) From: Greg Newman <gregn@sharkeez.net> Sent: Wednesday, June 17, 2020 6:36 PM To: Westmoreland, Liz Subject: FW: 6/18/20 - Planning Commission Staff Report and Agenda – PA2017-255 Follow Up Flag: Follow up Flag Status: Completed [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Hi Liz, please see below. See you tomorrow! Greg Newman President Baja Sharkeez Restaurant Group - Baja Sharkeez, Sandbar, Panama Joe's, Killarney Bar & Grill, Tower12, Shark’s Cove, Palmilla Cocina y Tequila & Esperanza p. 310-374-3964 f. 310-374-9901 36 13th Ct. Hermosa Beach, CA 90254 www.sharkeez.net www.sandbarsb.com www.panamajoescantina.com www.tower12hb.com www.sh arkscovemb.com www.palmillarestaurant.com Hermosa I Huntington I Manhattan I Newport I Santa Barbara I Belmont Shore From: Leigh Lupinacci <leighl@sharkeez.net> Sent: Wednesday, June 17, 2020 6:19 PM To: Greg Newman <gregn@sharkeez.net>; Ron Newman <ron@sharkeez.net> Subject: RE: 6/18/20 - Planning Commission Staff Report and Agenda – PA2017-255 Dear Liz, You asked me to send you an email outlining what conditions were unreasonable and which would give us a hard time complying with. I would appreciate if you included the points I detail below in your presentation. It seemed like you understood my reasoning when we spoke on the phone. By the way, you did an amazing job writing this document! Its seems to me it must have taken you weeks. With that being said, it took me 2 hours to read through, which is why this email is coming so late in the day. Hopefully, you will receive it first thing Thursday morning. Thank you for all of your help! The following points are in regards to Exhibit A Condition #2 (page 35). “Sales, service, and consumption of alcoholic beverages between the hours of 9 am and 11 am shall only be allowed on weekends (Friday through Sunday), and shall occur only in conjunction with the purchase of food from the regular menu.” Point #1 – here are the first are 3 issues we have with this condition: 1. People often come to a restaurant, sit down and order a drink before they decide on what they would like to eat. Often, guests place orders before they open up the food menus. 2. People may like to order a 2nd round of drinks while enjoying their breakfast. They should not have to purchase more food in order to order a 2nd round. Planning Commission - June 18, 2020 Item No. 2d Additional Materials Received At Meeting - Staff Baja Sharkeez Remodel (PA2017-255) 3. There times when one person in a party may not be ordering breakfast, and he/she may just want to enjoy a drink while the others in their party eat breakfast Point #2 There are a few holidays each year that may fall onto a weekday. These days are extremely important to our business, and we need to be able to service guests and provide breakfast service if these holidays fall on a weekday. We would like an exception to the “weekend only” condition for the following holidays: New Years Day (January 1st), St Patrick’s Day (March 17th), Cinco de Mayo (May 5th), Memorial day (varies), 4th of July and Labor Day (varies). Thank you for your consideration and assistance! Leigh Lupinacci Director Food & Beverage, Partner Baja Sharkeez Restaurant Group - Baja Sharkeez, Sandbar, Panama Joe's, Killarney Bar & Grill, Tower12, Palmilla Cocina y Tequila, Esperanza Cocina de la Playa p. 310-374-3964 f. 310-374-9901 36 13th Ct. Hermosa Beach, CA 90254 Hermosa I Huntington I Manhattan I Newport I Santa Barbara I Belmont Shore From: Greg Newman Sent: Wednesday, June 17, 2020 5:46 PM To: Leigh Lupinacci <leighl@sharkeez.net>; Jordan Cressman <jordan@sharkeez.net>; Eric Levit <eric@sharkeez.net> Subject: FW: 6/18/20 - Planning Commission Staff Report and Agenda – PA2017-255 Greg Newman President Baja Sharkeez Restaurant Group - Baja Sharkeez, Sandbar, Panama Joe's, Killarney Bar & Grill, Tower12, Shark’s Cove, Palmilla Cocina y Tequila & Esperanza p. 310-374-3964 f. 310-374-9901 36 13th Ct. Hermosa Beach, CA 90254 www.sharkeez.net www.sandbarsb.com www.panamajoescantina.com www.tower12hb.com www.sh arkscovemb.com www.palmillarestaurant.com Hermosa I Huntington I Manhattan I Newport I Santa Barbara I Belmont Shore From: Westmoreland, Liz <LWestmoreland@newportbeachca.gov> Sent: Friday, June 12, 2020 8:03 AM Planning Commission - June 18, 2020 Item No. 2d Additional Materials Received At Meeting - Staff Baja Sharkeez Remodel (PA2017-255)