Loading...
HomeMy WebLinkAboutZA2023-036 - APPROVING A MINOR USE PERMIT TO EXAND THE EXISTING TYPE 47 ALCOHOLIC BEVERAGE CONTROL (ABC) LICENSE TO ESTABLISH A MINI-BAR WITHIN NEIMAN MARCUS LOCATED AT 601 NEWPORT CENTER DRIVE (PA2022-0250)RESOLUTION NO. ZA2023-036 A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING A MINOR USE PERMIT TO EXAND THE EXISTING TYPE 47 ALCOHOLIC BEVERAGE CONTROL (ABC) LICENSE TO ESTABLISH A MINI-BAR WITHIN NEIMAN MARCUS LOCATED AT 601 NEWPORT CENTER DRIVE (PA2022-0250) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by The Neiman-Marcus Group, Inc., with respect to property located at 601 Newport Center Drive, and legally described as Parcel 1 as shown on a map filed in Book 67, Pages 2 and 3 of Parcel Maps, in the Office of the County Recorder of said County requesting approval of a minor use permit. 2. The applicant requests a minor use permit to expand an existing Type 47 (On-Sale General – Eating Place) ABC license to add a free-standing mini bar (i.e., Eating and Drinking Establishment) to the first floor of Neiman Marcus. There is an existing eating and drinking establishment, Mariposa café, on the third floor of Neiman Marcus with a Type 47 ABC license, which would be expanded to allow alcohol service at a mini bar. The mini bar will serve beer, wine, and spirits as well as non-alcoholic beverages and food. The project involves minor tenant improvements to the existing retail space for an approximately 461- square-foot bar area with four tables and 12 chairs for customer seating. No late hours (i.e., after 11:00 p.m.) or live entertainment is proposed. 3. The subject property is designated Regional Commercial (CR) by the General Plan Land Use Element and is located within the North Newport Center Planned Community (PC-56) Zoning District. 4. The subject property is not located within the coastal zone. 5. A public hearing was held on May 25, 2023 online via Zoom. A notice of time, place and purpose of the hearing was given in accordance with the Newport Beach Municipal Code (NBMC). Evidence, both written and oral, was presented to, and considered by, the Zoning Administrator 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. Zoning Administrator Resolution No. ZA2023-036 Page 2 of 13 10-18-21 2. The Class 1 exemption authorizes minor alterations to existing structures involving negligible or no expansion of use. The project proposed a 461-square-foot mini-bar with minor tenant improvements on the first floor of an existing commercial building. SECTION 3. REQUIRED FINDINGS. Alcohol Sales In accordance with Section 20.48.030 (Alcohol Sales) of the NBMC, the Zoning Administrator shall consider the following findings prior to the approval of a new or amended alcohol sales establishment: Finding: A. 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 Project is consistent with Section 20.48.030 (Alcohol Sales) 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 in an area the Newport Beach Police Department (NBPD) has designated as Reporting District 39 (RD 39) which encompasses the Fashion Island mall and surrounding areas. The NBPD is required to report offenses of Part One Crimes (criminal homicide, forcible rape, robbery, aggravated assault, burglary, larceny, theft, and motor vehicle theft), combined with all arrests for other crimes, both felonies and misdemeanors (except traffic citations) to the Department of Alcoholic Beverage Control (ABC). RD 39 is reported as a high crime area as compared to adjacent reporting districts in the city, RD 38, RD 43, and RD 47. The RD’s crime count is 261, which is 158 percent over the City-wide crime count average of 101. The highest volume of crime in this area is shoplifting and the highest volume of arrests in the area is DUI related. The higher crime rate is largely attributable to the concentration of commercial land uses and the high ratio of nonresidential to residential uses. 2. Since RD 39 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 38 is 56 percent below the City-wide average, RD 43 is 64 percent below the City- wide average, and RD 47 is 62 percent below the City-wide average. Of the 38 RDs in Newport Beach, 11 are reported to ABC as high crime areas. Zoning Administrator Resolution No. ZA2023-036 Page 3 of 13 10-18-21 3. The NBPD has reviewed the project and has no objection to the expansion of the existing Type 47 ABC License subject to appropriate conditions of approval. The area is a planned entertainment district with few residences, making an application of this nature appropriate for the area. The project will be subject to appropriate conditions of approval and all NBPD recommended conditions of approval have been included in Exhibit “A” of this Resolution. ii. The number of alcohol-related calls for service, crimes, or arrests in the reporting district and in adjacent reporting districts. Reporting District Alcohol Related Arrests1 Total Arrests RD 39 (Project) 47 199 RD 38 7 27 RD 43 5 18 RD 47 6 33 Newport Beach 800 2,959 1. In RD 39, DUI, public intoxication, and liquor law violations make up roughly 24 percent of arrests. In comparison, the figure for neighboring RD 38 is roughly 26 percent, RD 43 is roughly 28 percent, and RD 47 is roughly 18 percent. These statistics reflect the City of Newport Beach’s data for 2021, which is the latest available data. 2. The NBPD has reviewed the application and has provided operational conditions of approval to help minimize any potential detrimental impacts. Condition of Approval No. 35 is included to ensure a security recording system is maintained and made available to police upon request. iii. The proximity of the establishment to residential zoning districts, day care centers, hospitals, park and recreation facilities, place of worship, schools, other similar uses, and any uses that attract minors. 1. The proposed mini bar will be located on the first floor of Neiman Marcus within the Fashion Island Shopping Center. The area is separated from residential areas by parking lots, large roadways, and other commercial uses. The nearest residential neighborhood is over 1,000 feet away. There are no day care centers, hospitals, park and recreation facilities, places of worship, school, or other similar uses in the immediate vicinity. While some minors are expected to be present at the mall, the mall is intended to attract a variety of visitors and not specifically minors. 2. Residential uses are permitted in the northern sections of the PC-56 Zoning District within Blocks 500, 600, 800, and San Joaquin Plaza. However, the proposed project is not located in close proximity to these residential districts. 1 Alcohol Related Arrests includes DUI (alcohol), public intoxication, and liquor law related arrests. Zoning Administrator Resolution No. ZA2023-036 Page 4 of 13 10-18-21 iv. The proximity to other establishments selling alcoholic beverages for either off-site or on-site consumption. 1. There are several other restaurants within the mall. These include Fleming’s Steak House, True Food Kitchen, Back Bay Tavern at Whole Foods Market, and P.F. Chang’s. Generally, these restaurants operate with either a Type 41 (On-Sale Beer and Wine) or a Type 47 (On-Sale General) ABC license. There is no evidence suggesting that these uses have been detrimental to the surrounding vicinity. Additionally, there is no evidence to suggest that the approval of this mini bar with alcohol services would create any new objectionable conditions. 2. The proposed mini bar will operate during the standard Neiman Marcus hours, which currently operates between 10 a.m. and 7 p.m. According to the NBPD, an adequate security plan is currently in place for Fashion Island and the property owner, The Irvine Company, employs uniformed security for the area which serves as an additional crime deterrent. v. Whether or not the proposed amendment will resolve any current objectionable conditions. 1. No objectionable conditions are presently occurring at the site. Minor Use Permit In accordance with Section 20.52.020(F) (Conditional Use Permits and Minor Use Permits – Findings and Decision) 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 Land Use Element of the General Plan categorizes the project site as Regional Commercial (CR). The CR designation is intended to provide areas appropriate for retail, entertainment, service, and supporting uses that serve local and regional residents. Typically, these are integrated into a multi-tenant development that contains one or more “anchor” uses to attract customers. Fashion Island is the largest retail center in Newport Beach with multiple anchor tenants, including Neiman Marcus. A mini-bar with alcoholic beverage sales is supportive to the overall shopping center and is intended to serve both the residents and visitors to the city. 2. Land Use Element Policy LU 6.14.1 (Fashion Island [“CR” designation]) is intended to provide the opportunity for an additional anchor tenant, other retail, and/or entertainment and supporting uses that complement, are integrated with, and enhance the economic vitality of existing development. A maximum of 213,257 square feet of retail Zoning Administrator Resolution No. ZA2023-036 Page 5 of 13 10-18-21 development capacity specified by Table LU2 (Anomaly Locations) may be reallocated for other permitted uses in Newport Center, provided that the peak hour vehicle trips generated do not exceed those attributable to the underlying retail entitlement. The project does not propose any additional floor area and only includes minor tenant improvements to an existing area on the first floor. The addition of the mini-bar does not anticipate to generate additional vehicle trips, but is intended to enhance the shopping experience for visitors to Fashion Island. 3. The subject property is not part of a specific plan area. Finding: C. 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: 1. The property is within the Fashion Island sub-area of the North Newport Center Planned Community (PC-56) Zoning District and is developed with retail, dining, and commercial entertainment uses. Permitted uses for Fashion Island include uses in support of the existing retail, dining, and commercial entertainment uses. Fashion Island is intended to be a vibrant regional retail and entertainment center, and a daytime and evening destination with a wide variety of uses that will serve visitors, residents, and employees of the area. A mini bar with alcoholic beverage sales in a retail store is consistent with the purposes of the Fashion Island Sub-Area of the PC-56 Zoning District. 2. Eating and drinking establishments are permitted uses within the Fashion Island Sub- Area of the PC-56 Zoning District. The addition of alcohol sales in conjunction with an eating and drinking establishment requires the approval of a minor use permit. 3. The mini bar is not intended to operate as a bar, lounge, or nightclub as defined in the Newport Beach Municipal Code, which defines this use as an establishment that sells or serves alcoholic beverages for consumption on the premises and is holding or applying for a public premises ABC license. PC-56 also defines bars and cocktail lounges as establishments engaged in selling or serving alcoholic beverages for consumption on the premises or establishments having any of the following characteristics: being licensed as a public premise by ABC or providing an area for serving alcoholic beverages that is operated during hours not corresponding to regular meal service hours. Food products sold or served incidentally to the sale or service of alcoholic beverages shall not be deemed as constituting regular food service. Public premise ABC licenses typically allow for consumption of alcoholic beverages on or off the premises, does not required food service, and does not allow minors (persons under 21 years of age) to enter and remain on the premises. Neiman Marcus currently has a Type 47 ABC License for the Mariposa café located on the third floor and the project proposes to expand the existing Type 47 ABC License. Minors are allowed to be on the premises. Zoning Administrator Resolution No. ZA2023-036 Page 6 of 13 10-18-21 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 Fashion Island shopping mall is developed around an internal pedestrian network and surrounded by parking lots, providing little or no connectivity to adjoining office, entertainment, or residential areas. The shopping center is framed with a ring road that connects to a number of interior roadways. The proposed project is intended to support Neiman Marcus and provide an additional amenity for patrons to the shopping center. 2. The on-site consumption of alcoholic beverages will be incidental to retail establishment and consumption of alcohol must be kept within the delineated area of the mini bar area. Pursuant to Condition of Approval No. 27, the quarterly gross sales of the alcoholic beverages will not exceed the gross sales of food during the same period of the licensed business. The licensed business, Neiman Marcus, will meet this condition with the gross sales of food from the existing Mariposa café within the business. Finding: E. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provisions of public and emergency vehicle (e.g., fire and medical) access and public services and utilities; and Facts in Support of Finding: 1. The Fashion Island shopping center features a shared parking pool provided through on-site surface parking lots and parking structures. The PC-56 Zoning District requires three (3) parking spaces per 1,000 square feet for the regional commercial land use. The proposed mini bar with alcohol service is an accessory to the existing retail establishment will not increase the demand for parking. 2. The project has been reviewed by the Life Safety Division (Fire Department) to ensure adequate public emergency vehicle access is provided. The Fashion Island shopping center is an existing development that is adequately served by utilities and can be accessed by emergency vehicles. 3. The project involves minor tenant improvements that will comply with all Building, Public Works, and Fire Codes. The operator is required to comply with all ordinances of the City and all conditions of approval. Finding: F. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise Zoning Administrator Resolution No. ZA2023-036 Page 7 of 13 10-18-21 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 approvals to help ensure that potential conflicts with the surrounding land uses are minimized to the greatest extent possible. The NBPD has reviewed the project and Condition of Approval No. 26 is included to ensure the premise does not operate as a bar, tavern, cocktail lounge, or nightclub as defined by the NBMC. 2. The mini bar with alcohol service will serve as an amenity to local shoppers and visitors to Neiman Marcus and to Fashion Island. It promotes economic activity in the area that is consistent with the General Plan’s intention to provide a variety of commercial uses. 3. The project 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 restaurant, during business hours, if directly related to the patrons of the establishment. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Zoning Administrator 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 Zoning Administrator of the City of Newport Beach hereby approves the Minor Use Permit (PA2022-0250), 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 Community Development Director in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. Zoning Administrator Resolution No. ZA2023-036 Page 8 of 13 10-18-21 PASSED, APPROVED, AND ADOPTED THIS 25TH DAY OF MAY, 2023. Zoning Administrator Resolution No. ZA2023-036 Page 9 of 13 10-18-21 EXHIBIT “A” CONDITIONS OF APPROVAL Planning Division 1. The development shall be in substantial conformance with the approved floor plans stamped and dated with the date of this approval (except as modified by applicable conditions of approval). 2. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 3. The 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. 4. The hours of operation shall be between 10 a.m. and 7 p.m., daily. 5. This Use Permit may be modified or revoked by the Zoning Administrator if determined 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 change in operational characteristics, expansion in area, or other modification to the approved plans, shall require subsequent review and approval of the Planning Division. 7. 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. 8. 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. 9. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher: Zoning Administrator Resolution No. ZA2023-036 Page 10 of 13 10-18-21 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 10. 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. 11. Construction activities shall comply with Section 10.28.040 of the Newport Beach Municipal Code, which restricts hours of noise-generating construction activities that produce noise to between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday, and 8:00 a.m. and 6:00 p.m. on Saturday. Noise-generating construction activities are not allowed on, Sundays or Holidays. 12. No outside paging system shall be utilized in conjunction with this establishment. 13. 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. 14. 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. 15. 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. 16. 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). 17. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10:00 p.m. and 7:00 a.m. on weekdays and Saturdays and between the hours of 10:00 p.m. and 9:00 a.m. on Sundays and Federal holidays, unless otherwise approved by the Director of Community Development, and may require an amendment to this Use Permit. Zoning Administrator Resolution No. ZA2023-036 Page 11 of 13 10-18-21 18. 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. 19. 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. 20. This approval shall expire and become void unless exercised within 24 months from the actual date of review authority approval, except where an extension of time is approved in compliance with the provisions of Title 20 Planning and Zoning of the Newport Beach Municipal Code. 21. 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 Neiman Marcus BAR NM Minor Use Permit including, but not limited to, Minor Use Permit (PA2022-0250). 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. Fire Department 22. No umbrellas or other devices that may block fire sprinkler coverage shall be permitted. Police Department 23. The Alcoholic Beverage Control License shall be limited to a Type 47 (On-Sale General – Eating Place). Any substantial change in the ABC license type shall require subsequent review and potential amendment of the Use Permit. 24. The applicant shall comply with all federal, state, and local laws, and all conditions of the Alcoholic Beverage License. Material violation of any of those laws or conditions in connection with the use is a violation and may be cause for revocation of the use permit. 25. 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 Zoning Administrator Resolution No. ZA2023-036 Page 12 of 13 10-18-21 standards of the certifying/licensing body designated by the State of California. The establishment shall comply with the requirements of this section within 60 days of approval. Records of each owner’s manager’s and employee’s successful completion of the required certified training program shall be maintained on the premises and shall be presented upon request by a representative of the City of Newport Beach. 26. Approval does not permit the premises to operate as a bar, tavern, cocktail lounge or nightclub as defined by the Newport Beach Municipal Code. 27. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The licensee shall at all times maintain records, which reflect separately the gross sales of food and the gross sales of alcoholic beverages of the licensed business. These records shall be kept no less frequently than on a quarterly basis and shall be made available to the Police Department on demand. 28. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee. 29. Alcohol service and alcohol consumption must occur in the ABC licensed areas only. 30. Food service shall be made available to patrons during alcohol service. 31. 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. 32. 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. 33. “VIP” passes or other passes to enter the establishment, as well as door charges, cover charges, or any other form of admission charge, including minimum drink order of the sale of drinks is prohibited (excluding charges for prix fixe meals). 34. Strict adherence to maximum occupancy limits is required. 35. The applicant shall maintain a security recording system with a 30-day retention and make those recording available to police upon request. 36. 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, and debris 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. 37. The operator of the restaurant facility shall be responsible for the control of noise generated by the subject facility. All noise generated by the proposed use shall comply Zoning Administrator Resolution No. ZA2023-036 Page 13 of 13 10-18-21 with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. Building Division 38. 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.