HomeMy WebLinkAboutPC2021-011 - APPROVING CONDITIONAL USE PERMIT NO. UP2020-198, WHICH SUPERSEDES USE PERMIT NO. UP2005-027 AND OUTDOOR DINING PERMIT NO. OD2007-002, TO ALLOW THE EXPANSION OF AN EXISTING RESTAURANT AND AN UPGRADE FROM A TYPE 41 TO A TYPE 47 ABC LICENSE LOCRESOLUTION NO. PC2021-011 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, APPROVING CONDITIONAL USE PERMIT NO. UP2020-198, WHICH SUPERSEDES USE PERMIT NO. UP2005-027 AND OUTDOOR DINING PERMIT NO. OD2007-002, TO ALLOW THE EXPANSION OF AN EXISTING RESTAURANT AND AN UPGRADE FROM A
TYPE 41 TO A TYPE 47 ABC LICENSE LOCATED AT 2110 AND 2112 WEST OCEAN FRONT (PA2020-356) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS:
SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Boardwalk Mexican, LLC / Super Panga (“Applicant”), with respect to property located at 2110 and 2112 West Ocean Front, and legally described as
Lots 3 and 4 in Block 21 of Newport Beach, in the City of Newport Beach, County of
Orange, State of California, as per map recorded in Book 3, Page 26 of Miscellaneous Maps, in the Office of the County Recorder of said County (“Property”), requesting approval of a conditional use permit.
2. The Applicant proposes to remodel and expand an existing restaurant into the adjoining
tenant space, currently occupied by Henry's Groceries. Also included is a request to upgrade the existing Type 41 (On-Sale Beer and Wine - Eating Place) Alcoholic Beverage Control ("ABC") license to a Type 47 (On-Sale General - Eating Place) ABC license. As part of the project, the existing Type 20 (Off-Sale Beer and Wine) ABC license held by
Henry's Groceries will be eliminated. The proposed expansion will create an enlarged
interior dining area, as well as improved kitchen and restroom facilities. The proposed hours of operation are from 6 a.m. to 1:00 a.m., Monday through Thursday, and 6 a.m. to 1:30 a.m., Friday through Sunday. There will be no live entertainment or dancing. 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 Newport Beach Municipal Code (“NBMC”), the operation as described requires the owner/operator to obtain an operator license with the approval of a conditional use permit (“Project”).
3. The Property is categorized Mixed-Use Water 2 (MU-W2) by the 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 Coastal Land Use Plan category is Mixed-Use Water Related (MU-W) and it is located within the Mixed-Use Water (MU-W2)
Coastal Zone District. The present use of the Property is a restaurant in 2110 West Ocean
Front and a market in 2112 West Ocean Front. While the restaurant will be expanding into the adjoining tenant space thereby removing the market, this is not anticipated to significantly change the intensity of the existing uses in the Property; therefore, a coastal
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development permit is not required. Further, there is no additional parking required as part of the Project.
5. A telephonic public hearing was held on May 6, 2021 in the Council Chambers at 100 Civic Center Drive, Newport Beach, observing restrictions due to the Declaration of a State Emergency and Proclamation of Local Emergency related to COVID-19. 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”) and Chapters 20.62
and 21.62 of the NBMC. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this 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 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 is limited to interior improvements to convert a retail sales use to an eating and
drinking establishment and involves no expansion in gross floor area.
SECTION 3. REQUIRED FINDINGS. Conditional Use Permit Findings
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:
A. The use is consistent with the General Plan and any applicable specific plan. Facts in Support of Finding:
1. The General Plan land use category for the Property 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 expanded eating and drinking establishment, which is the primary occupant of the Property is consistent with this land use category.
Eating and drinking establishment uses are common to this area and complementary to
the surrounding commercial and residential uses. 2. Inasmuch as the Project will not result in an increase in the floor area ratio, the Project is consistent with the Land Use Element development limitations.
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3. The Project is consistent with General Plan Land Use Policy LU 6.8.2 (Component Districts), which emphasizes that McFadden Square should be utilized as one of the
primary activity centers within the City. Expansion of the existing eating and drinking
establishment to include a new dining area with accessory bar counter will diversify the use and provide an additional visitor- and local-serving convenience. 4. Eating and drinking establishments are common to this area along the Balboa Peninsula
and frequented by visitors and residents. The Project is compatible with the land uses
permitted within the surrounding neighborhood. The expanded establishment is expected to help improve and revitalize the existing building and the surrounding neighborhood and will serve the residents, businesses and visitors to the area.
5. The Property is not part of a specific plan area.
Finding: B. The use is allowed within the applicable zoning district and complies with all other
applicable provisions of the Zoning Code and the Municipal Code.
Facts in Support of Finding: 1. The Property is in the Mixed-Use Water (MU-W2) Zoning District. The MU-W2 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 are allowed in this District subject to the approval of a use permit.
2. A restaurant has been operating at the Property since at least 1959 with outdoor dining
beginning in 2007, with the approval of Accessory Outdoor Dining Permit No. OD2007-002 (PA2007-069). The proposed expansion will diversify the use by creating additional interior dining area, a service bar counter, and storage area. The bar counter will also allow the existing kitchen to be expanded, which will improve the food service
component.
3. The proposed expansion is not anticipated to change the parking demand significantly. The McFadden Square area is adequately served by the two (2) adjacent municipal lots throughout most of the year and the proximity to multiple commercial uses and coastal
resources will result in shared trips to the project site and surrounding area.
4. The existing floor area of the Henry’s Groceries tenant space is approximately 783 square feet, which requires four (4) parking spaces at a rate of one (1) space for every 250 square feet of gross floor area. The existing net public area (i.e., customer area) of
the restaurant is 420 square feet. The Project results in a customer area of
approximately 534 square feet for a net increase of 134 square feet. The outdoor dining area is not included in the net public area and parking calculation as the outdoor dining is less than 25 (25%) percent of the interior net public area (NBMC Section 20.40.040 Table 3-10). In accordance with Sections 20.40.060 (Parking Requirements for Food
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Service Uses) and 20.28.060(B)(1) (Change of Use) of the NBMC, staff has considered the operational characteristics and recommends applying a parking requirement of one
(1) parking space for every 40 square feet of customer area. This results in an additional
requirement of three (3) parking spaces for the restaurant. When considering the current Henry’s Groceries four (4) required parking spaces, there is no increase needed as this meets the parking requirement.
Finding:
C. The design, location, size, and operating characteristics of the use are compatible with
the allowed uses in the vicinity.
Facts in Support of Finding:
1. The operation of the eating and drinking establishment will be restricted to the hours between 6 a.m. to 1 a.m., Monday through Thursday, and 6 a.m. to 1:30 a.m., Friday through Sunday with outdoor dining ceasing at 10 p.m. The closing hours are compatible
with other late-night eating and drinking establishments in the area.
2. An eating and drinking establishment has operated in this location since at least 1959. 3. The Project provides an expanded interior dining area, a service bar counter, an
expanded kitchen, a new storage area, a small outdoor dining area, and revamped
restroom facilities for patrons. Live entertainment and dancing are not proposed. The expanded area was previously occupied by a retail sales tenant. 4. The Project includes conditions of approval to ensure that potential impacts are
minimized to the greatest extent possible. Although the Project is located beneath
residential units, the building is oriented toward the Newport Pier beach area and West Ocean Front Parking Lot away from the other nearby mixed-use structures. The Applicant is also required to control trash and litter around the Property.
5. The operational conditions of approval recommended by the Newport Beach Police
Department (“NBPD”) relative to the sale of alcoholic beverages, including an Operator License, will help ensure compatibility with the surrounding uses and address alcohol related impacts. The project has been conditioned to ensure the welfare of the surrounding community.
6. The Applicant is required to obtain Orange County Health Department approval prior to opening the expanded area for business and is further required to comply with the California Building Code to ensure the safety and welfare of customers and employees within the establishment.
7. The Property is in a relatively dense area with multiple uses within a short distance of each other. The McFadden Square area is conducive to a significant number 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
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parking lots and on-street parking is available in the area to accommodate the Project in the off-season as well as in the months when demand is higher.
8. The Project is not expected to noticeably change the parking demand in the McFadden Square area and Facts in Support of Finding B.3 and B.4 are hereby incorporated by reference.
Finding:
D. The site is physically suitable in terms of design, location, shape, size, operating
characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities.
Facts in Support of Finding: 1. The Property is located within an existing mixed-use (i.e., nonresidential) building. The existing tenant spaces are designed and developed for an eating and drinking
establishment and a retail sales use. The design, size, location, and operating
characteristics of the use are compatible with the surrounding neighborhood. The adjacent tenant space where the Project will expand into, has generally been used by various retail sales uses since construction including the current operator, Henry’s Groceries. The existing floor area of Henry’s Groceries is approximately 783 square feet. The
existing net public area (i.e., customer area) of the restaurant is currently 420 square
feet. The expansion of the restaurant will only result in approximately 534-square-foot increase in customer area for a net increase of 134 square feet. 2. Adequate public and emergency vehicle access, public services, and utilities are already
provided to the Property based upon the existing use. Any additional utilities upgrades
required for the change in occupancy will be required at plan check as a condition of approval for the Project. 3. The tenant improvements to 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:
E. 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:
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
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conditions related to the Project that constitute a nuisance in parking areas, sidewalks, and areas surrounding the Property and adjacent properties during business hours.
2. The expanded establishment will provide improved dining and service of alcoholic beverages as a public convenience to the surrounding neighborhood and visitors to the area. This will help continue to revitalize the project site and provide an economic opportunity for the Property owner to update the retail tenant and service, which best
serves the quality of life for the surrounding visitor- and local-serving community.
Additionally, the Project will result in the elimination of the Type 20 ABC license currently held by Henry’s Groceries. 3. No alcohol service will be allowed in the outdoor dining area which should help prevent
noise concern or other nuisances.
4. Facts in Support of Finding B.3 and B.4 are hereby incorporated by reference.
Alcohol Sales Finding
In accordance with Section 20.48.030 (Alcohol Sales) of the NBMC, the Planning Commission must make the following finding for approval of a new ABC license:
Finding:
F. The use is consistent with the purpose and intent of Section 20.48.030 (Alcohol Sales) of
the Zoning Code.
Facts in Support of Finding:
In finding that the proposed use is consistent with NBMC Section 20.48.030 of the Zoning Code, the following criteria must be considered:
i. The crime rate in the reporting district and adjacent reporting districts as compared to other
areas in the City. 1. The Property is in Reporting District (“RD”) 15, which includes most of the commercial establishments for the Balboa Peninsula south of Coast Highway and 20th Street. The
NBPD is required to report offenses of Part One Crimes combined with all arrests for
other crimes, both felonies and misdemeanors (except traffic citations) to ABC. Part One Crimes are the eight (8) most serious crimes defined by the FBI Uniform Crime Report: criminal homicide, rape, robbery, aggravated assault, burglary, larceny-theft, auto theft, and arson. RD 15 is considered a higher crime area, as compared to other reporting
districts in the City. The RD 15 crime count is 540, which is 363 percent over the citywide
crime count average of 140. The higher crime rate within this reporting district is largely due to the number of visitors to the Balboa Peninsula, the high concentration of restaurants, visitor-serving uses, and the high ratio of nonresidential to residential uses in RD 15. In comparison, RD 13 (8th Street to 20th Street) is 30 percent over the citywide
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average, RD 12 (B Street to 8th Street) is 46percent below the citywide average, and RD 16 (37th Street to 54th Street) is 25 percent over the citywide average.
2. While the Project is in an area that has a high concentration of alcohol licenses, staff feels it is acceptable to allow the proposed expansion of the privileges of the current establishment. The expanded privileges would provide enhanced opportunities for customers and could improve the viability of the business. In addition, the existing Type
20 (Off-Sale Beer and Wine) ABC license held by the current tenant will be removed.
The NBPD does not object to this Project as conditioned and the business would be required to obtain an Operator License. ii. The numbers of alcohol-related calls for service, crimes, or arrests in the reporting district
and in adjacent reporting districts.
1. RD 15 had a higher percentage of alcohol-related crimes in 2020, compared to all adjacent reporting districts; however, this is to be expected given that this figure includes driving under the influence, public intoxication, and liquor law violations, and the area is
highly concentrated with commercial establishments. From January 1, 2020, through
December 31, 2020, NBPD reported two (2) Part One Crime incidents and one (1) Part Two Crime incident. None of the calls received were a result of over-service of alcohol or neglect in responsibility by the Applicant.
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 site is in a mixed-use zoning district, which allows for residential uses when
intermixed with nonresidential uses. The nearest residential units are located above the
nonresidential tenant space. The existing restaurant and proposed expanded configuration will be oriented towards the City’s West Ocean Front Parking Lot. As conditioned, the outdoor dining area will cease operating at 10 p.m. The nearest residential district is located approximately 400 feet southeast of the project site, halfway
down Court Avenue. Although not a residential use, there is a boutique hotel (Doryman’s
Inn) immediately across 21st Place, above Rockin’ Baja Lobster and 21 Oceanfront restaurants. The nearest recreational facilities, the beach and the Newport Pier, are located approximately 150 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
Property along West Balboa Boulevard. The nearest school, Newport Elementary
School, is located 0.7 miles to the east of the Property along West Balboa Boulevard. The nearest day care center, Children’s Center by the Sea, is approximately 0.6 miles to the east along West Balboa Boulevard. The proposed use is surrounded by other commercial, retail, and office uses on the ground level.
iv. The proximity to other establishments selling alcoholic beverages for either off-site or on-
site consumption.
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1. The location of the Project is in proximity to several establishments with alcohol licenses on the Balboa Peninsula including the Stag Bar, Rockin’ Baja Lobster, 21 Oceanfront
Restaurant, The Blue Beet, il Farro Restaurant and Baja Sharkeez, among others. All
of these establishments have late-night and early-morning hours, and most are also open for breakfast. The RD 15 statistics indicate an over-concentration of alcohol licenses within this statistical area.
2. The per capita ratio of one (1) license for every 69 residents is higher than all adjacent
census tracts and the average citywide ratio. This is due to the higher concentration of commercial land uses, many of them visitor-serving, and lower number of residential properties in the RD 15 area. While the Project is in proximity to other establishments selling alcoholic beverages, staff believes the physical and operational characteristics
of the proposed establishment would make the continuation of alcoholic beverage sales
appropriate at this location. Staff, including the NBPD, believes the expanded privileges requested, subject to the included conditions of approval, should not prove detrimental to the area considering the number and proximity of nearby establishments that serve alcohol. In addition, the elimination of an existing Type 20 ABC license as a result of this
Project will not result in a net-increase in ABC licenses in the area.
v. Whether or not the proposed amendment will resolve any current objectionable conditions. 1. Approving the Project will allow the existing restaurant to diversify its offerings as a
convenience to its patrons. There are no current objectionable conditions to resolve
through approval of this Conditional Use Permit. The NBPD acknowledges the addition of liquor to the existing restaurant is a new privilege, however, approval of this Project will also result in the elimination of the Type 20 (Off-Sale Beer and Wine) ABC license. The NBPD has no objection to the Project with recommended conditions of approval put in
place.
Additional Considerations In accordance with Section 20.48.090 (Eating and Drinking Establishments) of the NBMC, the
Planning Commission shall make the following considerations when reviewing an application
to allow an eating or drinking place to sell, serve, or give away alcohol:
i. Evaluate the potential impacts upon adjacent uses outlined in subsection (F)(3)(a) of this section (Late-Hour Operations). For the purposes of this subsection, “adjacent uses”
shall mean those uses within 100 feet of the proposed use, as measured between the
nearest lot lines; 1. Facts in support of Finding F are hereby incorporated by reference.
ii. Consider the proximity to other establishments selling alcoholic beverages for either off-
site or on-site consumption; 1. Facts in support of Finding F.iii are hereby incorporated by reference.
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iii. Make the findings in Section 20.48.030(C)(3) (Alcohol Sales—Off-Sale).
1. Facts in support of Finding F.iv are hereby incorporated by reference.
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. UP2020-198, 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 is filed with the City Clerk in accordance with the provisions of Title 20 (Planning and Zoning) of the NBMC.
4. This resolution supersedes Planning Director’s Use Permit No. UP2005-027 and
Outdoor Dining Permit No. OD2007-002, which upon vesting of the rights authorized by this Conditional Use Permit, shall become null and void. PASSED, APPROVED, AND ADOPTED THIS 6TH DAY OF MAY, 2021.
AYES: Ellmore, Klaustermeier, Kleiman, Koetting, Lowrey, Rosene, and Weigand NOES: None
ABSTAIN:
ABSENT:
BY:_________________________ Erik Weigand, Chairman
BY:_________________________
Lauren Kleiman, Secretary
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EXHIBIT “A”
CONDITIONS OF APPROVAL
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. Conditional Use Permit No. UP2020-198 shall expire unless exercised within 24 months from the date of approval as specified in Section 20.54.060 of the NBMC, unless an extension is otherwise granted.
3. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 4. 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
Conditional Use Permit. 5. This Conditional Use Permit may be modified or revoked by the City Council or 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. 6. Any substantial change in operational characteristics, expansion in area, or other
material modification to the approved plans, shall require subsequent review by the
Planning Division and may require an amendment to this Conditional Use Permit or the processing of a new Conditional Use Permit. 7. 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.
8. Prior to the issuance of building permits, the Applicant shall pay any unpaid administrative costs associated with the processing of this application to the Planning Division.
9. A copy of this Resolution shall be incorporated into the Building Division and field sets
of plans prior to issuance of the building permits. 10. Prior to issuance of building permits, the Applicant shall submit to the Planning Division an additional copy of the approved architectural plans for inclusion in the Conditional
Use Permit 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
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and shall be reduced in size to 11 inches by 17 inches. The plans shall accurately depict the elements approved by this Conditional Use Permit and shall highlight the approved
elements such that they are readily discernible from other elements of the plans.
11. Prior to the issuance of building permits, Fair Share Traffic Fees shall be paid for the change from general commercial to restaurant use in accordance with Chapter 15.38 of the NBMC. The Applicant shall be credited for the reduction in general commercial square
footage and the remaining balance shall be charged or credited to the Applicant.
12. The hours of operation for the eating and drinking establishment shall be limited to the hours between 6 a.m. and 1:00 a.m., Monday through Thursday, and 6 a.m. to 1:30 a.m., Friday through Sunday.
13. The removal or relocation of tables, chairs, stools, or other furniture to accommodate an area for standing or dancing shall be prohibited. 14. The accessory outdoor dining shall be used in conjunction with the related adjacent food
establishment and shall be limited to 30 square feet.
15. The seating adjacent to the food use facility shall be limited to the area as delineated on the approved site plan only. The approved outdoor dining area shall be located on a solid surface in accordance with the approved floor plan or seating plan. The use of
pavement marking to delineate the area shall be specifically prohibited.
16. The tables shall be permanently affixed to the building, no freestanding tables shall be permitted between the building and the public right-of-way, the specific table tops and seating shall be approved by the Planning Division and any proposed changes to the
seating type shall be reviewed by the Planning Division prior to installation.
17. Alcoholic beverage service shall be prohibited in the outdoor dining area without an amendment to the Conditional Use Permit and approval by the Police Department and the Alcoholic Beverages Control Board (ABC).
18. Should problems arise with regard to noise associated with the outdoor dining areas or with regards to tables, chairs, or stools encroaching into the public right-of-way, the Planning Division shall require the removal of all or a portion of the outdoor dining area seating in the areas that contribute or cumulatively contribute to the problems or
complaints.
19. There shall be no exterior advertising or signs of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic
beverages. Interior displays of alcoholic beverages or signs which are clearly visible to
the exterior shall constitute a violation of this condition. 20. All proposed signs shall be in conformance with applicable provisions of Chapter 20.42 (Signs) of the NBMC.
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21. A minimum of two (2) on-site parking spaces shall always be made available for the
restaurant’s use. The two (2) parking spaces shall be maintained in an approved
configuration providing on-site parking spaces, as approved by the Building Division and Public Works Department to meet accessibility requirements, if deemed necessary or appropriate.
22. Employees shall always park on-site or in the municipal parking lot and shall not park
on residential streets in the neighborhood or in on-site residential parking spaces.
23. All lighting shall conform with the standards of Section 20.30.070 (Outdoor Lighting). The Community Development Director may order the dimming of light sources or other
remediation upon finding that the site is excessively illuminated. If outdoor lighting is
proposed, the Applicant shall submit a photometric survey as part of the plan check to verify illumination complies with the Zoning Code standards. 24. The operator of the facility shall be responsible for the control of noise generated by the
subject facility including, but not limited to, noise generated by patrons, food service
operations, and mechanical equipment. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the NBMC. Pre-recorded music may be played in the tenant space, provided exterior noise levels outlined below are not exceeded. The noise generated by
the proposed use shall comply with the provisions of Chapter 10.26 of the NBMC. The
maximum noise shall be limited to no more than depicted below for the specified time period unless the ambient noise level is higher:
Between the hours of Between the hours of 7 a.m. and 10 p.m. 10 p.m. and 7 a.m.
interior exterior interior exterior Measured at the property line of
commercially zoned property: N/A 65 dBA N/A 60 dBA
Measured at the property line of residentially zoned property: N/A 60 dBA N/A 50 dBA Residential property: 45 dBA 55 dBA 40 dBA 50 dBA
25. No outdoor sound system, loudspeakers, or paging system shall be permitted in
conjunction with the facility.
26. 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.
27. 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
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Department. 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).
28. The exterior of the business shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris, and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. Graffiti shall be
removed within 48 hours of written notice from the City.
29. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10 p.m. and 8 a.m., daily, unless otherwise approved by the Community Development Director, and may require an amendment to this Conditional Use Permit.
30. Deleted
31. The hours of operation of the outdoor dining area is limited to between the hours of 8 a.m. and 10 p.m., daily; any increase in the hours of operation shall be subject to the approval
of an amendment to this Conditional Use Permit.
32. Storage outside of the building in the front or at the rear of the property shall be prohibited, with the exception of the trash container on pick-up days.
33. 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 the Super Panga Restaurant including, but not limited to, the Conditional Use Permit No. UP2020-198 (PA2020-356). This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or
proceeding whether incurred by Applicant, City, and/or the parties initiating or bringing such
proceeding. The Applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The Applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition.
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Police Department
34. The operator of the establishment shall secure and maintain an Operator License pursuant
to Chapter 5.25 of the NBMC. 35. The Operator License required to be obtained pursuant to Chapter 5.25 of the NBMC, may be subject to additional and/or more restrictive conditions such as a security plan to
regulate and control potential late-hour nuisances associated with the operation of the
establishment. 36. A comprehensive security plan for the eating establishment shall be submitted for review and approval by the Newport Beach Police Department. The procedures included in the
security plan shall be implemented and adhered to for the life of the Conditional Use
Permit. 37. The approval is for the operation of Super Panga, a food service, eating and drinking establishment with late hours, and on-sale alcoholic beverage service. The type of
alcoholic beverage license issued by the California Board of Alcoholic Beverage Control
shall be a Type 47 (On-Sale General – Eating Place) license in conjunction with the restaurant as the principal use of the facility. 38. Approval does not permit the premises to operate as a bar, tavern, cocktail lounge or
nightclub as defined by the NBMC.
39. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee.
40. There shall be no live entertainment or dancing allowed on the premises.
41. No games or contests requiring or involving the consumption of alcoholic beverages shall be allowed.
42. There shall be no reduced-price alcoholic beverage promotions after 9 p.m.
43. Food service from the regular menu shall be made available to patrons until 1 hour before closing.
44. “VIP” passes or passes to enter the establishment, as well as door charges, cover
charges, or any other form of admission charge, including minimum drink order or the sale of drinks is prohibited, excluding pre-fixe meals. 45. 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 Police Department upon request. 46. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The licensee shall at all times maintain records, which
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reflect separately the gross sales of food and the gross sales of alcoholic beverages of the licensed business. These records shall be kept no less frequently than on a quarterly
basis and shall be made available to the Police Department on demand.
47. Petitioner shall not share any profits or pay any percentage or commission to a promoter or any other person based upon monies collected as a door charge, cover charge, or any other form of admission charge, including minimum drink orders or the sale of drinks.
48. Any event or activity staged by an outside promoter or entity, where the Applicant, operator, owner or his employees or representatives share in any profits, or pay any percentage or commission to a promoter or any other person based upon money collected as a door charge, cover charge or any other form of admission charge is
prohibited.
49. The Applicant shall maintain a security recording system with a 30-day retention and shall provide those recordings to the NBPD upon request.
50. There shall be no on-site radio, televisions, video, film, or other electronic media
broadcasts, including recordings to be broadcasted at a later time, which include the service of alcoholic beverages, without first obtaining an approved Special Event Permit issued by the City.
51. A Special Event Permit is required for any event or promotional activity outside the
normal operational characteristics of the approved use, as conditioned, or that would attract large crowds, involve the sale of alcoholic beverages, include any form of on-site media broadcast, or any other activities as specified in the NBMC to require such permits.
52. 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. The certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service or
other certifying/licensing body, which the State may designate. The establishment shall
comply with the requirements of this section within 60 days of the issuance of the certificate of occupancy. 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.
53. Strict adherence to maximum occupancy limits is required. Building Division
54. The Applicant is required to obtain all applicable permits from the City’s Building Division and Fire Department. A building permit is required to allow the change in use to an eating and drinking establishment. The construction plans must comply with the most recent, City-adopted version of the California Building Code. The construction plans must meet all
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applicable State Disabilities Access requirements. Complete sets of drawings including architectural, electrical, mechanical, and plumbing plans shall be required at plan check.
55. The building permit drawings shall illustrate compliance with California Building Code Chapter 11B and path of travel requirements in Section 11B-202.4. 56. Approval from the Orange County Health Department is required prior to the issuance of
a building permit.
Public Works Department 57. There shall be no queueing to enter the restaurant within the public right-of-way. All
queueing shall occur on private property and shall not impact the City’s walkway.
58. An encroachment permit for outside dining in the public right-of-way, issued by the Public Works Department, shall be obtained prior to the commencement of outdoor dining activities or placement of tables and chairs within the public right of way.
59. The area outside of the food establishment, including the public sidewalks, shall be maintained in a clean and orderly manner and may be subject to providing periodic steam cleaning of the public sidewalks as requires by the Public Works Department.
60. The location and set-up of the tables and chairs shall be in a single file arrangement,
parallel and flush along the front of the existing restaurant frontage wall only. 61. No furniture, tables, or chairs shall extend more than 36 inches beyond the face of the building wall into the public right-of-way.
62. A minimum 8-foot wide clear pedestrian pathway shall be provided between any vertical obstructions (i.e. parking meters, walls, tree well, furniture, or chairs). 63. The tables shall be affixed or attached to the wall of the building at all times that the outdoor
dining is provided.
64. All the outdoor dining tables and chairs shall be removed from the public right-of-way outside of the permitted hours and/or when the facility is closed unless otherwise approved by the Public Works Department, as specified in the Encroachment Agreement.
65. The use of umbrellas or solid, permanent roof coverings, patio covers, or retractable awnings shall be prohibited. 66. The outdoor dining in the public right-of-way shall be provided and maintained in
accordance with City Council Policy No. L-21.
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