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HomeMy WebLinkAboutZA2024-007 - APPROVING A MINOR USE PERMIT TO ALLOW A TYPE 41 (ON-SALE BEER AND WINE – EATING PLACE) ALCOHOLIC BEVERAGE CONTROL (ABC) LICENSE FOR A FOOD SERVICE, EATING, AND DRINKING ESTABLISHMENT LOCATED AT 849 NEWPORT CENTER DRIVE (PA2023-0196)RESOLUTION NO. ZA2024-007 A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH APPROVING A MINOR USE PERMIT TO ALLOW A TYPE 41 (ON-SALE BEER AND WINE – EATING PLACE) ALCOHOLIC BEVERAGE CONTROL (ABC) LICENSE FOR A FOOD SERVICE, EATING, AND DRINKING ESTABLISHMENT LOCATED AT 849 NEWPORT CENTER DRIVE (PA2023-0196) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Noelia Santiago of Valerio, Inc., (“Applicant”), concerning property located at 849 Newport Center Drive, and legally described as Lot 2 of Lot Line Adjustment No. LA 2009-001 (“Property”), requesting approval of a minor use permit. 2. The Applicant has requested a minor use permit to allow the sale and service of alcoholic beverages with a Type 41 (On-Sale Beer and Wine – Eating Place) Alcoholic Beverage Control (ABC) License at a proposed food service, eating, and drinking establishment (restaurant) project. The restaurant would operate within a 2,397 square foot tenant space and adjoining 286 square foot outdoor dining area. The tenant space would have 34 interior seats and 16 seats in the outdoor dining area. 3. The Property is categorized as Regional Commercial (CR) by the General Plan Land Use Element and is located within the Fashion Island Sub-Area of the North Newport Center Planned Community (PC-56) Zoning District. 4. The Property is not located within the coastal zone; therefore, a coastal development permit is not required. 5. A public hearing was held on February 15, 2024, online via Zoom. 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 (Public Hearings) of the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Zoning Administrator at this public hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This Project is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. 2. The Class 1 (Existing Facilities) exemption includes the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, Zoning Administrator Resolution No. ZA2024-007 Page 2 of 11 facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use. The Project is to allow the sale of alcohol in a restaurant, which is being constructed in a portion of a tenant space that was previously occupied by a larger restaurant with alcohol sales. Inasmuch as the new use will be a smaller version of the previous use of the tenant space, there is no intensification in use. SECTION 3. REQUIRED FINDINGS. Alcohol Sales In accordance with Section 20.48.030(C)(3) (Alcohol Sales-Required Findings) of the NBMC, the findings and facts in support of such findings are set forth as follows: Finding: A. The use is consistent with the purpose and intent of NBMC Section 20.48.030 (Alcohol Sales). Facts in Support of Finding: In finding that the Project is consistent with Section 20.40.030 (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. a) The Property is in Reporting District 39 (“RD 39”). RD 39 exceeds the Citywide average and is considered a higher crime area as compared to other reporting districts. The Crime Count in RD 39 is 425, which is 260% over the Citywide crime count average of 118. Since this area has 20% or greater 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. However, it is important to note that RD 39 contains the Fashion Island Shopping Center, a regional center with various retail, office, restaurant, and entertainment business. The highest volume of crime in this area is theft while the highest volume of arrests in the area are drug related offenses. While alcohol related crimes make up 16% of the arrests in this reporting district, they make up a smaller percentage of overall crime than in neighboring reporting districts. In comparison, the alcohol related arrests for the neighboring districts are RD 43 is 18%, RD 47 is 21% and RD 38 is 40%. While the reporting district does have a high crime rate, the majority of these crimes are theft, which is a result and nature of the operation of a regional shopping center. b) The Newport Beach Police Department (“NBPD”) has reviewed the proposed use. Based on the location, operational characteristics, and closing hours, the NBPD has no objection to the proposed Type 41 ABC License, subject to appropriate conditions of approval, which have all been included in Exhibit “A” attached to this Resolution. Zoning Administrator Resolution No. ZA2024-007 Page 3 of 11 ii. The numbers of alcohol-related calls for service, crimes, or arrests in the reporting district and in adjacent reporting districts. a) Due to the higher concentration of crimes related to the operation of a regional shopping center, RD 39 is reported to ABC as a high crime area as compared to other reporting districts in the City. The highest volume of crime in this area is theft and the highest volume of arrest in the area is drug-related offenses. Driving under the influence, public intoxication, and liquor law violations make up 16% of arrests in this reporting district. In comparison, the alcohol related arrests for the neighboring districts are as follows: RD 43 is 18%, RD 47 is 21% and RD 38 is 40%. 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. a) The proposed location of the alcohol establishment is within the Fashion Island Shopping Center, which is a regional mall. It is not within close proximity 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. b) The nearest residential area is located approximately 1,250 feet to the southwest of the restaurant, across San Joaquin Hills Road. The nearest religious facility is St. Mark Presbyterian Church, which is approximately 2,700 feet to the east of the restaurant. The nearest school is Lincoln Elementary, which is approximately 4,800 feet to the southeast of the restaurant. c) The proposed alcohol sales are not anticipated to be detrimental to the community because of the proximity to any sensitive land uses, especially with the allowed operation narrowed by the Conditions of Approval. iv. The proximity to other establishments selling alcoholic beverages for either off-site or on- site consumption. a) The restaurant is located within a regional shopping center that also has several other establishments active ABC Licenses, most of which are bona fide eating and drinking establishments and are not defined as bars, lounges or nightclubs by Title 20 (Planning and Zoning) of the NBMC. In addition to the other eating establishments, a Whole Foods grocery store is located within the shopping center, which provides alcohol sales for off-site consumption. b) The Project’s proximity to other establishments selling alcohol does not raise a concern due to characteristics of the use, which primary business is the sale of food. The proposed hours of operation are 11:00 a.m. to 9:00 p.m., Monday through Friday; 11:00 a.m. to 7:00 p.m., Saturday; and 11:00 a.m. to 6:00 p.m., Sunday. Conditions of approval will further prevent the establishment from operating as a bar, lounge, or nightclub. Zoning Administrator Resolution No. ZA2024-007 Page 4 of 11 v. Whether or not the proposed amendment will resolve any current objectionable conditions. a) No objectionable conditions are presently occurring at the Property. The Property has historically been used as a regional shopping center that is well maintained and provides sufficient security to address issues. There is no evidence that suggests the Project will create objectionable conditions. b) The Project has been reviewed and conditioned to ensure that the purpose and intent of Section 20.48.030 (Alcohol Sales) of the NBMC is maintained and that a healthy environment for residents and businesses is preserved. The service of alcohol is intended for the convenience of customers dining at the establishment. Operational conditions of approval recommended relative to the sale of alcoholic beverages will ensure compatibility with the surrounding uses and minimize any alcohol related impacts. c) As conditioned, the owners, managers, and employees selling alcohol are required to undergo and successfully complete a certified training program in responsible methods and skills for selling alcohol. d) The Project does not propose late hours (after 11:00 p.m.), live music, or dancing. Condition of Approval No. 3 limits the hours of operation and Conditions of Approval Nos. 33 and 35 prohibit live entertainment and dancing, respectively. Minor Use Permit In accordance with Section 20.52.020(F) (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 General Plan Land Use Designation for the property is Regional Commercial, which is intended to provide retail, entertainment, service, and supporting uses that serve local and regional residents. The regional shopping center provides various types of uses and serves the local population, and invites people from throughout the region. The proposed restaurant supports patrons who visit Fashion Island for shopping and dining. 2. The Project is consistent with the following General Plan Land Use policies, applicable to the Project: a. Land Use Element Policy LU 1.5 (Economic Health). Encourage a local economy that provides adequate commercial, office, industrial, and marine- Zoning Administrator Resolution No. ZA2024-007 Page 5 of 11 oriented opportunities that provide employment and revenue to support high- quality community services. The Project provides an additional dining option in the Fashion Island area to those who live, work, or visit the community. The Project will also provide employment opportunities for restaurant employees. b. Land Use Policy LU 2.1 (Resident-Serving Land Uses). Accommodate uses that support the needs of Newport Beach’s residents including housing, retail, services, employment, recreation, education, culture, entertainment, civic engagement, and social and spiritual activity that are in balance with community natural resources and open spaces; and The Project provides an additional dining option in Fashion Island area to those who live, work, or visit the community. 3. The Property is not a 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 zoned North Newport Center (PC-56), within the Fashion Island Sub- Area. This Sub-Area of the Planned Community allows for a variety of uses, including restaurants, which are allowed to operate as a permitted use. However, the inclusion of alcohol sales requires the applicant to obtain a Minor Use Permit (MUP). 2. The previous use of the tenant space was a larger restaurant. The proposed new restaurant reduces the size of the eating establishment and would not intensify the use. Accordingly, there would be no impact on the existing parking demand or management. 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. Commercial uses, including restaurants, are common along Fashion Island and serve visitors and residents. Conditions of approval are included to ensure that the Project is compatible with the land uses permitted within the surrounding neighborhood. Zoning Administrator Resolution No. ZA2024-007 Page 6 of 11 2. The Project is located within an existing regional shopping center and will complement the existing mix of retail, service, and restaurant uses in the immediate area. The tenant space was previously a restaurant use. 3. There are no late hours of operation proposed with the Project. As conditioned, the restaurant will operate between 11:00 a.m. to 9:00 p.m., Monday through Friday; 11:00 a.m. to 7:00 p.m., Saturday; and 11:00 a.m. to 6:00 p.m, on Sunday. The closing hours will help ensure there is no detriment to the adjacent uses. 4. The NBPD has reviewed the Project and has no objections. The operational conditions of approval recommended by the NBPD related to the sale of alcoholic beverages will help ensure compatibility with the surrounding uses and minimize alcohol-related impacts. The Project has been conditioned to ensure the welfare of the surrounding community. Finding: E. 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 Project is located will utilize a portion of a tenant space that was previously used by another restaurant within a regional shopping center. The use will not expand the floor area of the building and will not increase parking demand of the shopping center. 2. The previous tenant space was divided into multiple tenant spaces, of which the proposed restaurant will utilize one. The Applicant is required to obtain Orange County Health Department approval prior to opening for business and comply with the Building Code to ensure the safety and welfare of customers and employees within the . 3. Adequate public and emergency vehicle access, public services, and utilities are provided for the Property. Any additional utilities upgrades required for the change in occupancy will be required at plan check for the building permit. 4. Permits for the tenant improvement have been issued, which have been reviewed to comply with all Building, Public Works, and Fire Codes. All City ordinances and all conditions of approval will be complied with. The inspections that will be conducted as part of the construction will verify that applicable codes are being met. 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 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. Zoning Administrator Resolution No. ZA2024-007 Page 7 of 11 Facts in Support of Finding: 1. There are no late hours of operation proposed with the Project. As conditioned, the Restaurant will operate between 11:00 a.m. to 9:00 p.m., Monday through Friday; 11:00 a.m. to 7:00 p.m., Saturday; and 11:00 a.m. to 6:00 p.m on Sunday. The closing hours will help ensure there is no detriment to the adjacent uses. 2. The Type 41 (Beer and Wine) ABC License will provide dining services as a public convenience to the surrounding businesses as well as to visitors. The service of alcohol will complement the principal use of the facility as a restaurant and provide an economic opportunity for the Applicant to maintain a successful business in a way that best serves the community. 3. The restaurant is located within the interior portion of the Fashion Island shopping center and is surrounded by other retail uses and parking structures. As a result, noise generated by the Project would be hindered such that it would not impact surrounding uses. 4. As conditioned, the owners, managers, and employees selling alcohol are required to undergo and successfully complete a certified training program in responsible methods and skills for selling alcohol. 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 (PA2023-0196), 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 NBMC. PASSED, APPROVED, AND ADOPTED THIS 15TH DAY OF FEBRUARY 2024. _______________________________________ Benjamin M. Zdeba, AICP, Zoning Administrator Zoning Administrator Resolution No. ZA2024-007 Page 8 of 11 EXHIBIT “A” CONDITIONS OF APPROVAL Project Specific Conditions are Italicized. Planning Division 1. The development shall be in substantial conformance with the approved site plan and floor plans stamped and dated with the date of this approval (except as modified by applicable conditions of approval). 2. Any change in operational characteristics, expansion in area, or other modification to the approved plans, may require an amendment to this Use Permit or the processing of a new Use Permit. 3. The hours of operation for the restaurant shall be limited to 9:00 a.m. to 11:00 p.m., daily. 4. The project is subject to all applicable City ordinances, policies, and standards unless specifically waived or modified by the conditions of approval. 5. The Applicant shall comply with all federal, state, and local laws. A material violation of any of those laws in connection with the use may be cause for revocation of this Use Permit. 6. A copy of the Resolution, including conditions of approval Exhibit “A” shall be incorporated into the Building Division and field sets of plans before issuance of the building permits 7. This Use Permit may be modified or revoked by the Zoning Administrator should they determine that the proposed uses or conditions under which the use is being operated or maintained are 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. 8. Before 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 periods unless the ambient noise level is higher: Between the hours of 7:00 AM and 10:00 PM Between the hours of 10:00 PM and 7:00 AM 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 Zoning Administrator Resolution No. ZA2024-007 Page 9 of 11 Between the hours of 7:00 AM and 10:00 PM Between the hours of 10:00 PM and 7:00 AM 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. No outside paging system shall be utilized in conjunction with this establishment. 12. Trash receptacles for patrons shall be conveniently located both inside and within the outdoor patio. 13. Storage outside of the building shall be prohibited, with the exception of the required trash containers. 14. A Special Events Permit is required for any event or promotional activity outside the normal. 15. 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 Saturdays, Sundays, or Holidays. 16. Operating 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. 17. 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. 18. 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 Mendocino Farms including, but not limited to, the Minor Use Permit filed under PA2023-0196. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorney’s 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, attorney’s fees, and damages which City Zoning Administrator Resolution No. ZA2024-007 Page 10 of 11 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. Building Division 19. Prior to the commencement of any construction, the Applicant shall obtain the required permits. 20. At least 5% of the seating spaces and standing spaces at the dining surfaces shall comply with Section 11B-902 of the 2022 California Building Code. 21. The occupant load for the patio shall not exceed 49 persons unless additional exiting is provided per the 2022 California Building Code. 22. Provide clear space of 12” past strike edge of the door on the opposite side to which the door swings if the door is equipped with both a latch and a closer. (Figure 11B-404.2.4.1(c)) 23. Where provided, at least one of each type of sales counter and service counter shall comply with Section 11B-904.4. Fire Department 24. Any modifications of the structure that affect the design of the fire sprinkler system shall require a fire sprinkler permit from NBFD. Police Department 25. The Alcoholic Beverage Control License shall be limited to a Type 41 (On-Sale Beer and Wine). Any substantial change in the ABC license type shall require subsequent review and potential amendment of the Use Permit. 26. 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. 27. 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 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. 28. Approval does not permit the premises to operate as a bar, tavern, cocktail lounge or nightclub as defined by the Newport Beach Municipal Code. Zoning Administrator Resolution No. ZA2024-007 Page 11 of 11 29. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The licensee shall at all times maintain records, which reflect separately the gross sales of food and the gross sales of alcoholic beverages of the licensed business. These records shall be kept no less frequently than on a quarterly basis and shall be made available to the Police Department on demand. 30. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee. 31. Alcohol service and alcohol consumption must occur in the ABC licensed areas only. 32. Food service shall be made available to patrons during alcohol service. 33. There shall be no live entertainment allowed on the premises. 34. There shall be no amplification of live music (d.j., band, soloist, etc.) allowed on the premises. This condition of approval shall not be interpreted to prohibit the playing of prerecorded background music. 35. There shall be no dancing allowed on the premises. 36. 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. 37. 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. 38. "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). 39. Strict adherence to maximum occupancy limits shall be required. 40. 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.