HomeMy WebLinkAbout1866 - APPROVE CUP (AMENDMENT TO UP3200)_2304 WEST OCEAN FRONTRESOLUTION NO. 1866
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF NEWPORT BEACH APPROVING CONDITIONAL USE
PERMIT NO. UP2011 -034 (AMENDMENT TO UP3200) FOR A
FOOD SERVICE, LATE -HOURS USE LOCATED AT 2304 WEST
OCEAN FRONT (PA2011 -199)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
An application was filed by Stephen Loomis, with respect to property located at 2304
West Ocean Front, and legally described as Parcel 1 of Parcel Map No. 86 -196, as per
map recorded in Book 244, Pages 33 through 34 of Parcel Maps, requesting an
amendment to an existing conditional use permit (UP3200).
2. The applicant proposes to change the seating configuration of an existing eating and
drinking establishment with an addition of a bar and to expand the hours of operation
to allow for breakfast service on weekend mornings. The proposed hours of operation
are from 11:00 a.m. to 12:00 midnight on weekdays and from 9:00 a.m. to 12:00
midnight on weekends. No other changes to the establishment are proposed.
3. The subject property is located within the Commercial Visitor - Serving (CV) Zoning District
and the General Plan Land Use Element category is Visitor - Serving Commercial (CV).
The subject property is located within the coastal zone. The Coastal Land Use Plan
category is Visitor - Serving Commercial (CV -B).
A public hearing was held on January 19, 2012 in the City Hall Council Chambers, 3300
Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of
the meeting was given in accordance with the Newport Beach Municipal Code.
Evidence, both written and oral, was presented to, and considered by, the Planning
Commission at this meeting.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
This project has been determined to be categorically exempt under the requirements
of the California Environmental Quality Act under Class 1 (Existing Facilities).
This exemption authorizes minor alterations to existing structures involving negligible
or no expansion of use. The proposed project involves minor alterations to the interior
floor plan of an existing restaurant, and therefore, qualifies for this exemption.
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SECTION 3. REQUIRED FINDINGS
Pursuant to Section 20.20.020 of the Zoning Code, eating and drinking establishments classified
as Food Service, Late Hours, require the approval of a conditional use permit within the
Commercial Visitor - Serving Zoning District. The existing establishment operates pursuant to
Use Permit No. UP3200 (as amended December 6, 1990). The requested change in hours of
operation and the addition of a bar is considered a substantial change in operation that requires
an amendment to UP3200. In accordance with Section 20.52.020.F of the Newport Beach
Municipal Code, the following findings and facts in support of such findings are set forth:
Finding:
A. T he use is consistent with the General Plan and any applicable Specific Plan.
Facts in Support of Finding:
A -1. The operation of a Food Service, Late Hours use, with alcoholic beverages, is
consistent with the purpose and intent of the Visitor - Serving Commercial (CV)
land use designation of the General Plan.
A -2. The CV designation is intended to provide for areas appropriate for
accommodations, goods, and services intended to serve primarily visitors to the
City. Food Service uses can be expected to be found in this area and similar
locations and are complementary to the surrounding commercial and residential
uses.
Finding:
B. The use is allowed within the applicable zoning district and complies with all other
applicable provisions of this Zoning Code and the Municipal Code.
Facts in Support of Finding:
B -1. Eating and drinking establishments classified as Food Service, Late -Hours require
the approval of a conditional use permit within the Commercial Visitor - Serving
(CV) district.
B -2. As conditioned, the proposed project will comply with Zoning Code standards
for eating and drinking establishments.
B -3. Pursuant to Chapter 5.25, an amendment to a use permit requires the operator
of the establishment to secure an Operator License from the Police Department
to maintain operating hours beyond 11:00 p.m. This requirement is included in
the conditions of approval.
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Finding:
C. The design, location, size, operating characteristics of the use are compatible with
the allowed uses in the vicinity.
Facts in Support of Finding:
C -1. 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
an environment compatible for both residents and businesses.
C -2. A minimum of three parking spaces are provided for the restaurant's use at the
off -site parking lot located across the alley from the property and located at 111
23rd Street. Additional spaces may be made available for the restaurant's use if
the remaining spaces within the lot are not being utilized by the hotel. Public
parking also exists in the adjacent public parking lot. Given its location fronting
the boardwalk and public parking lot, the restaurant is expected to generate a
significant amount of walk -in traffic from residents and visitors in the area.
Therefore, adequate parking will be provided for the proposed operation at all
times of the day.
C -3. The use of the passenger loading spaces for valet service at this location will
reduce any congestion created by restaurant patrons looking for parking and
will ensure greater usage of the off -site parking facility.
C -4. The restaurant will maintain the existing closing time of 12:00 midnight and is
not anticipated to create disturbances to the adjacent uses because there will
be no outdoor dining, dancing, or live entertainment. A condition of approval
has also been included requiring the exterior windows and doors of the facility
to remain closed after 10:00 p.m., which will minimize sound emanating from
the property.
C -5. No new lighting is proposed with the exception of illumination.
C -6. Existing trash storage for the restaurant is provided within the hotel's garage
and storage area on the 111 23`d Street parcel. The requested changes to the
restaurant operation are not expected to result in an increase in trash collection
activities. A condition of approval has been included requiring the trash to be
kept within the garage at all times, except during collection.
C -7. The operational conditions of approval recommended by the Police Department
relative to the sale of alcoholic beverages will ensure compatibility with the
surrounding uses and minimize alcohol related impacts.
C -8. The site is located near the northwest corner of 23`d Street and West Ocean
Front, with the building fronting onto the boardwalk and the public parking lot for
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the area. This is an appropriate location
other commercial uses in the area. The
visitor - serving use that benefits the area.
Finding:
for a restaurant and is compatible with
restaurant also serves as an important
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:
D -1. Adequate public and emergency vehicle access, public services, and utilities
exist for the site.
D -2. The design of the tenant improvements proposed will comply with all Building,
Public Works, and Fire Codes, and will be approved by the Orange County
Health Department.
D -3. The site fronts onto the West Ocean Front boardwalk and public parking lot that
already experiences heavy pedestrian and vehicular activity throughout the day.
The proposed floor plan changes and increased hours of operation for breakfast
service will not result in increased late -hour pedestrian and vehicular activity
since a total of 50 seats will remain and the occupancy of the restaurant will not
increase.
D -4. The location of the off -site parking lot is in close proximity and has proven to be
useful to the restaurant and does not create a traffic hazard in the surrounding
area. A covenant has been recorded guaranteeing that the parcel used for off -
site parking for the restaurant will remain in the same ownership as the property
on which the restaurant is located.
Finding:
E. Op eration 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:
E -1. The proposed renovations to the existing restaurant facility will have a positive
impact on the overall economic health of the community, and may promote
further revitalization of the other commercial properties located along the
boardwalk and within the McFadden Square area.
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E -2. 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 within the facility,
adjacent properties, or surrounding public areas, sidewalks, or parking lots of the
shopping center, during business hours, if directly related to the patrons of the
establishment surrounding residents.
E -3. In order to maintain late hours, the applicant will be required to obtain an
Operator License from the Police Department. The Operator License will
provide for enhanced control of noise, loitering, litter, disorderly conduct,
parking /circulation, and other potential disturbances resulting from the
establishment, and will provide the Police Department with means to modify,
suspend, or revoke the operator's ability to maintain of late -hour operations if
objectionable conditions occur.
E -4. The use authorized by this permit is not a bar, tavern, cocktail lounge, nightclub
or an establishment where live entertainment, recreational entertainment or
dancing is permitted. Prohibition of these uses or activities are likely to minimize
potential land use conflicts, nuisances and police intervention.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
The Planning Commission of the City of Newport Beach hereby approves Conditional
Use Permit No. UP2011 -034, subject to the conditions set forth in Exhibit A, which is
attached hereto and incorporated by reference.
2. This action shall become final and effective fourteen days after the adoption of this
Resolution unless within such time an appeal is filed with the City Clerk in accordance
with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal
Code.
3. Conditional Use Permit No. UP2011 -034 shall be considered an amendment to Use
Permit No. UP3200, and upon vesting of the rights authorized by this conditional use
permit, the conditions of approval of UP3200 shall be superseded by the conditions of
approval included in this resolution.
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PASSED, APPROVED AND ADOPTED THIS 19TH DAY OF JANUARY, 2012.
AYES: Ameri, Hillgren, Kramer, Myers, Toerge, and Tucker
NOES: None.
ABSTAIN: None.
ABSENT: None.
0
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IWAMIN -1111 e�ti
CONDITIONS OF APPROVAL
(Project- specific conditions are in italics)
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. UP2011 -034 shall expire unless exercised within 24 months
from the date of approval as specified in Section 20.54.060 of the Newport Beach
Municipal Code, unless an extension is otherwise granted.
3. Conditional Use Permit No. UP2011 -034 shall be considered an amendment to Use
Permit No. UP3200, and upon vesting of the rights authorized by this conditional use
permit, the conditions of approval of UP3200 (amended) shall be superseded by the
conditions of approval included in this resolution.
4. The approval is only for an eating and drinking establishment defined as Food Service,
Late Hours as defined by Title 20 of the Municipal Code, and does not permit the
premises to operate as a bar, tavern, cocktail lounge or nightclub.
5. The hours of operation shall be limited to between 7:00 a.m. and 11 :00 p.m., daily,
unless the operator of the establishment secures and maintains an Operator License
pursuant to Chapter 5.25 of the Municipal Code to operate with late hours. In no case
shall the establishment be permitted to operate beyond the hours of 12:00 midnight.
6. The Operator License required to be obtained pursuant to Condition No. 5 and Chapter
5.25 of the Municipal Code, may be subject to additional and /or more restrictive
conditions to regulate and control potential late -hour nuisances associated with the
operation of the establishment.
Full meal service shall be provided during all hours of operation, except 30 minutes
before the scheduled closing time.
8. The interior Net Public Area of the establishment, as defined by NBMC Section
20.70.020, shall be limited to a maximum of 580 square feet.
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.
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11. This approval was based on the particulars of the individual case and does not in and
of itself or in combination with other approvals in the vicinity or Citywide constitute a
precedent for future approvals or decisions.
12. This Conditional Use Permit may be modified or revoked by the Planning Commission
should they determine that the proposed uses or conditions under which it is being
operated or maintained is detrimental to the public health, welfare or materially
injurious to property or improvements in the vicinity or if the property is operated or
maintained so as to constitute a public nuisance.
13. Any change in operational characteristics, expansion in area, or other modification to
the approved plans, shall require an amendment to this Conditional Use Permit or the
processing of a new Conditional Use Permit.
14. 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.
15. 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.
16. No outside paging system shall be utilized in conjunction with this establishment.
17. All trash shall be stored within the building or within the hotel garage and storage area
located at 111 23'" Street, except when placed for pick -up by refuse collection
agencies. Any changes in trash collection and storage shall be reviewed and approved
by the Community Development Director.
18. The applicant shall ensure that the trash dumpsters and /or receptacles are maintained
to control odors. This may include the provision of either fully self- contained dumpsters
or periodic steam cleaning of the dumpsters, if deemed necessary by the Planning
Division. Cleaning and maintenance of trash dumpsters shall be done in compliance
with the provisions of Title 14, including all future amendments (including Water
Quality related requirements).
19. Deliveries and refuse collection for the facility shall be prohibited between the hours of
10:00 p.m. and 8:00 a.m., daily, unless otherwise approved by the Community
Development Director, and may require an amendment to this Conditional Use Permit.
20. Prior to final of the building permits, the applicant shall prepare and submit a practical
program for controlling litter, spills, and stains resulting from the use on the site and
adjacent areas to the Planning Division for review. The building permit shall not be
finaled and use cannot be implemented until that program is approved. The program
shall include a detailed time frame for the policing and cleanup of the public sidewalk
and right -of -way in front of the subject property as well as the adjacent public right -of-
way (25 feet north and south of the subject property) not just in front of the subject
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tenant space. Failure to comply with that program shall be considered a violation of the
use permit and shall be subject to administrative remedy in accordance with Chapter
1.05 of the Newport Beach Municipal Code that includes issuance of a citation of
violation and monetary fines.
21. A covered wash -out area for refuse containers and kitchen equipment, with minimum
useable area dimensions of 36- inches wide, 36- inches deep and 72- inches high, shall
be provided, and the area shall drain directly into the sewer system, unless otherwise
approved by the Building Division and Public Works Department in conjunction with
the approval of an alternate drainage plan.
22. The rear doors of the facility shall remain closed at all times. The use of the rear door
shall be limited to deliveries and employee use only. Ingress and egress by patrons is
prohibited in unless there is an emergency.
23, The exterior windows and doors of the facility shall remain closed after 10:00 p.m.,
daily, except for the ingress and egress of patrons and employees.
24. That all but three of the required 15 parking spaces for the restaurant are waived (1991
Condition).
25. The existing covenant shall be maintained guaranteeing that the parcel used for off -site
parking for the restaurant remains in the same ownership as the property on the which
the restaurant is located (1991 Condition; modified).
26. A minimum of three parking spaces shall be provided on the adjoining off -site parking lot
for the exclusive use of the restaurant
27. The restaurant shall be permitted to operate a full time valet parking service in
conjunction with the restaurant operation. However, the valet station shall be located in
the off -site parking lot unless the operator enters into an agreement with the City
authorizing a valet station within the public right -of -way (1991 Condition; modified).
28. The applicant shall enter into an agreement with the City providing indemnification,
naming the City as additional insured on a liability policy providing a minimum of
$1,000,000 coverage and stipulating that the City can revoke this approval in the event of
a violation of Conditions of Approval (1991 Valet Condition).
29. The restaurant shall pay to the City of Newport Beach an annual fee of $495 for the
portion of calendar year 2012. The fee shall be adjusted annually in accordance with the
Consumer Price Index for Los Angeles -Long Beach - Anaheim, with payments due
January 1St of each succeeding year (1991 Valet Condition; modified).
30. The pick -up and delivery of automobiles in conjunction with the restaurant valet service
shall be conducted in fill conformance with the California Vehicle Code and applicable
portions of the Municipal Code (1991 Valet Condition).
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31. The valet service shall only park customer's vehicles in their off -site facility. Should valet
parking demands exceed the number of spaces available with the off -site lot, the
operator must temporarily suspend valet parking of arriving customers' vehicles until
such time parking is available within the off -site lot (1991 Valet Condition; modified).
32. The valet service shall utilize sufficient employees to prevent the capacity of the loading
area from being exceeded and to prevent queuing of vehicles in the drive aisle. Double
parking shall not be allowed at any time (1991 Valet Condition; modified).
33. Any signs for valet service shall be subject to further review and approval of the Traffic
Engineer and the Community Development Director. An Encroachment Permit shall be
obtained for all signs placed in the public right -of -way (1991 Valet Condition).
34. The passenger loading spaces shall be available for all legal use and are not for the
exclusive use of the restaurant or any other business (1991 Valet Condition).
35. 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. 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 180 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.
36. The type of alcoholic beverage license issued by the California Board of Alcoholic
Beverage Control shall be a Type 47 in conjunction with the service of food as the
principal use of the facility. Any upgrade in the alcoholic beverage license shall be
subject to the approval of an amendment to this application and may require the
approval of the Planning Commission.
37. No "happy hour" type of reduced price alcoholic beverage promotion shall be allowed
except when served in conjunction with food ordered from the full service menu. There
shall be no reduced price alcoholic beverage promotions after 9:00 p.m.
38. No games or contests requiring or involving the consumption of alcoholic beverages
shall be permitted.
39. 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 that are clearly visible to
the exterior shall constitute a violation of this condition.
40. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of
food and retail sales during the same period. The licensee shall maintain records that
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reflect separately the gross sale of food and the gross sales of alcoholic beverages of
the licensed business. Said records shall be kept no less frequently than on a quarterly
basis and shall be made available to the Planning Division on demand.
41. 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,
including minimum drink orders or sale of drinks is prohibited
42. A Special Events Permit is required for any event or promotional activity outside the
normal operational characteristics of the approved use, as conditioned, or that would
attract large crowds, involve the sale of alcoholic beverages, include any form of on-
site media broadcast, or any other activities as specified in the Newport Beach
Municipal Code to require such permits.
43. There shall be no on -site radio, televisions, video, film or electronic media broadcasts,
including recordings to be broadcasted at a later time, which include the service of
alcoholic beverages, without first obtaining an approved Special Event Permit issued
by the City of Newport Beach.
44. Live entertainment and dancing shall be prohibited as a part of the regular operation,
unless an amendment to this conditional use permit or other required application is first
approved in accordance with the provisions of the Municipal Code.
45. The applicant is responsible for all upgrades to the City's utilities as required to fulfill
the project's demands.
46. The operator of the establishment shall maintain a copy of the most recent City permit
conditions of approval on the premises and shall post a notice that these are available for
review on the premises. The posted notice shall be signed by the permittee.
47. 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 Flyn' Fish Oyster Bar & Grill including, but not limited
to, Conditional Use Permit No. UP2011 -034 and the determination that the project is
exempt under the requirements of the California Environmental Quality Act. 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
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City upon demand any amount owed to the City pursuant to the indemnification
requirements prescribed in this condition.
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