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HomeMy WebLinkAbout2008-37 - Tommy Bahamas - Use Permit 3623RESOLUTION NO. 2008 -37 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH GRANTING AN APPEAL OF THE PLANNING COMMISSION'S DECISION AND APPROVING AN AMENDMENT TO USE PERMIT NO. 3623 FOR AN EATING AND DRINKING ESTABLISHMENT LOCATED AT 854 AVOCADO AVENUE (PA2008 -029) WHEREAS, an application was filed by Tommy Bahamas with respect to property located at 854 Avocado Avenue, and legally described as a Portion of Parcel No. 1 of Parcel Map filed in Book 90, Page 361 of Parcel Maps Records of Orange County, requesting approval of an amendment to Use Permit No. 3623 to permit an additional 461 - square -foot outdoor dining patio to an existing eating and drinking establishment that would be in excess of the maximum outdoor dining area allowed by the provisions of Section 20.82.050 (Accessory Outdoor Dining) of the Newport Beach Municipal Code; and WHEREAS, at a noticed public hearing held on April 3, 2008, the Planning Commission considered the project application, plans, and written and oral evidence presented at this meeting, and denied an amendment to Use Permit No. 3623 to allow the addition of a 461- square -foot outdoor dining patio to an existing eating and drinking establishment; and WHEREAS, on April 17, 2008, an appeal of the Planning Commission's decision to deny an amendment to Use Permit No. 3623 was filed by the applicant requesting that the City Council reconsider the Planning Commission's decision on the grounds that the proposed project does not exceed the allowable square footage for the overall shopping center; that the proposed project is supported by the minimum number of required parking spaces in the shopping center; and that the net total number of restaurant seats is being reduced by 2 seats due to a revised seating arrangement; and WHEREAS, pursuant to Section 20.95.060 C, a public hearing on an appeal is conducted "de novo," meaning that it is a new hearing and the decision being appealed has no force or effect as of the date the appeal was filed. The appellate body is not bound by the decision being appealed or limited to the issues raised on appeal; and WHEREAS, a public hearing on the appeal of the Planning Commission's decision to deny an amendment to Use Permit No. 3623 was held on May 13, 2008, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place, and purpose of the aforesaid meeting was given. Evidence, both written and oral, was presented to and considered by the City Council at this meeting; and WHEREAS, an amendment to Use Permit No. 3623 for the proposed changes to the existing eating and drinking establishment has been prepared in accordance with Section 20.91.035 of the Municipal Code based on the following findings and facts in support of such findings: 1. Finding: That the proposed location of the use is in accord with the objectives of this code and the purposes of the district in which the site is located. Facts in Support of Finding: The project is located in the Newport Village Planned Community District, which allows for the development of retail, governmental, institutional, and open space uses, and the project site is designated for retail uses. Restaurants are a permitted use subject to approval of a use permit. The existing restaurant use was approved in April 1998 pursuant to Use Permit No. 3623, and the proposed project to allow an additional 461- square -foot outdoor dining patio would be consistent with the provisions of the Newport Village Planned Community Development Standards and Municipal Code. 2. Finding: That the proposed location of the use permit and the proposed conditions under which it would be operated or maintained will be consistent with the General Plan and the purpose of the district in which the site is located; will not be detrimental to the public health, safety, peace, morals, comfort, or welfare of persons residing or working in or adjacent to the neighborhood of such use; and will not be detrimental to the properties or improvements in the vicinity or to the general welfare of the City. Facts in Support of Finding: The existing restaurant use is consistent with the General Commercial (CG) land use designation of the General Plan, which is intended to provide for a wide variety of commercial activities oriented primarily to serve citywide or regional needs. Pursuant to the Newport Village Planned Community Development Standards, the cumulative development of the site is limited to a maximum of 105,000 square feet, and parking for the site is based on the gross floor area of all uses. The proposed amendment to the existing use permit to allow an additional 461 - square -foot outdoor dining area to an existing eating and drinking establishment and will not exceed the maximum gross floor area allowed for the site. The total number of parking spaces provided on site is consistent with the minimum requirement established by the development standards, and the proposed addition of a 461- square -foot outdoor dining area will not result in the requirement for additional parking spaces. The approval of the proposed addition of a 461- square -foot outdoor dining area to an existing eating and drinking establishment, and the conditions under which the existing restaurant will be operated and maintained will not be detrimental to the public health, safety, peace, morals, comfort, or welfare of persons residing or working in or adjacent to the neighborhood of such use; and will not be detrimental to the properties, or improvements in the vicinity, or to the general welfare of the city for the following reasons: • Restaurant uses are compatible with the surrounding commercial and residential uses since they are typically located in retail commercial shopping centers and serve the regional needs in the area. • The net reduction in overall seats for the restaurant will not intensify the parking requirements for the proposed project. • The existing restaurant has operated in this location under the existing Use Permit No. 3623 since 1999, and has not been a detriment to the neighborhood. The hours of operation of the proposed project, as conditioned, will be limited to 11:00 a.m. to 11:00 p.m. daily for the outdoor dining areas and 11:00 a.m. to 12:00 midnight daily for the interior dining area. Specific conditions are included to require strict adherence to noise regulations so as to eliminate noise impacts to the surrounding area. • Live entertainment is limited to the interior of the restaurant and no dancing is permitted. 3. Finding: That the proposed use will comply with the provisions of this code, including any specific condition required for the proposed use in the district in which it would be located. Facts in Support of Finding: The proposed addition of a 461- square -foot outdoor dining area to an existing restaurant would substantially comply with the design and development standards for a full - service, low turnover eating and drinking establishment. The previous waiver of development standards as they apply to site requirements, walls, and landscaping were addressed by the development standards specified by the Newport Village Planned Community District, and by Site Plan Review No. 74, which were approved by the City Council on November 27, 1995, for development of Corona del Mar Plaza. WHEREAS, the project qualifies for a Categorical Exemption pursuant to Section 15301 (Existing Facilities) of the California Environmental Quality Act. The proposed addition of a 461- square -foot outdoor dining patio to the existing eating and drinking establishment is minor in nature. NOW, THEREFORE, BE IT RESOLVED: Section 1. The City Council of the City of Newport Beach hereby approves an amendment to Use Permit No. 3623, subject to Conditions of Approvals in Exhibit "A" attached hereto and made part hereof. PASSED, APPROVED AND ADOPTED THIS 13TH DAY OF MAY 2008. Henn, Rosansky, Daigle, AYES, COUNCIL MEMBERS Curry, Gardner, Mayor Selich NOES, ABSEN MAYOR CITY CLERK EXHIBIT "A" CONDITIONS OF APPROVAL AMENDMENT TO USE PERMIT NO. 3623 (Project - specific conditions noted in italics) Planning Department The following conditions herein replace and supersede the previous conditions of approval dated April 9, 1998, upon implementation of this amendment. 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 development shall be in substantial conformance with the site plan and floor plans stamped with the date of this approval. 4. The area of the new outdoor dining patio shall not exceed 461 square feet, as shown on the plans stamped with the date of this approval. 5. The seating arrangement for the restaurant shall be as shown on the plans stamped with the date of this approval. In no case shall the total number of seats in the interior and exterior dining areas of the restaurant exceed 283 seats. 6. All applicable previous conditions of approval of site Plan Review No. 74 and its accompanying applications shall be fulfilled and remain in force (dated December 29, 1995), except as noted below. 7. The restaurant hours of operation for the interior dining area shall be limited to between 11:00 a.m. and 12:00 midnight daily, and the outdoor dining patio areas shall close at 11:00 p.m. daily. Any increase in the hours of operation shall be subject to the approval an amendment to this Use Permit. 8. Regular food service from the full lunch and dinner menu shall be made available at all times the facility is open. 9. Live entertainment shall be limited to two performers, and may be amplified, but shall be confined to the interior of the building. Any increase in the number of performers beyond two persons shall require the approval of the Planning Commission. 10. All windows and doors on the southerly and parking lot sides of the building shall be permitted to remain open during the performance of the live entertainment, and windows and doors on the East Coast Highway and westerly sides of the building shall remain closed during the performance of the live entertainment. 11. All speakers located in the outdoor dining patio areas of the restaurant shall be limited to no more than the noise level criteria specified in Chapter 10.26 of the Newport Beach Municipal Code. Should any music emanating from the outdoor dining patio area speakers or from interior live entertainment be heard at the nearside comer of the intersection of Sea Lane and Harbor View Drive, the speaker volume for the outdoor dining area speakers shall be reduced to eliminate any noise impacts. 12. The speakers located in outdoor dining patio areas shall not be utilized in conjunction with the sound system of the live entertainment or paging of patrons. The outdoor dining area speakers shall be utilized for ambient background noise effect and shall be limited to pre- recorded music only. 13. Upon evidence that noise generated by the project exceeds the noise standards established by Chapter 10.26 (Community Noise Control) of the Municipal Code, the Planning Director may require that the applicant or successor retain a qualified engineer specializing in noise /acoustics to monitor the sound generated by the live entertainment and to develop a set of corrective measures necessary in order to insure compliance. 14. No dancing shall be permitted in conjunction with the permitted use, unless an amendment to this use permit is first obtained. 15. Roof coverings over the outdoor dining areas shall not have the effect of creating a permanent enclosure, unless a use permit is first approved by the Planning Commission.' 16. Any change in operational characteristics and /or hours of operation of the restaurant shall require amendment to this Use Permit or the processing of a new Use Permit. 17. Should this business be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by the current business owner, property owner and /or the leasing agent. 18. 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. 19. 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. 20. 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. 21. 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 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). 22. All trash shall be stored within the building or within dumpsters stored in the trash enclosure, or otherwise screened from view of neighboring properties except when placed for pick -up by refuse collection agencies. Trash dumpsters shall be fully enclosed and the top shall remain closed at all times, except when being loaded or while being collected by the refuse collection agency. 23. No temporary "sandwich" signs, balloons or similar temporary signs shall be permitted, either on -site or off -site, to advertise the proposed food establishment, unless specifically permitted in accordance with the Sign Ordinance of the Municipal Code. Temporary signs shall be prohibited in the public right -of -way, unless otherwise approved by both the Public Works Department and Caltrans in conjunction with the issuance of an encroachment permit or encroachment agreement from each. 24. 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. 25. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the license. 26. 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. 27. 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. 28. 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 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 Department on demand. 29. The approval is only for the establishment of a restaurant type facility as defined by Title 20 of the Municipal Code, with the principal purpose for the sale or service of food and beverages with sale and service of alcoholic beverages incidental to the food use. 30. The use permit approval does not permit the premises to operate as a bar, tavern, cocktail lounge or nightclub as defined by the Municipal Code, unless the Planning Commission first approves a use permit. 31. The sale of alcoholic beverages shall be incidental to the food service in conjunction with the subject restaurant. 32. All mechanical equipment shall be screened from view of adjacent properties and adjacent public streets, and shall be sound attenuated in accordance with Chapter 10.26 of the Newport Beach Municipal Code, Community Noise Control. 33. Deliveries, refuse collection, or similar activities for the facility shall be permitted only between the hours of 7:00 a.m. and 90:00 p.m. daily, unless otherwise approved by an amendment to this Use Permit 34. The Planning Commission may add to or modify conditions of approval to this use permit or revoke this approval upon a finding of failure to comply with the conditions set forth in Chapter 20.82 of the Municipal Code or other applicable conditions and regulations governing the food establishment. The Planning Commission may also revoke this Use Permit upon a determination that the operation which is the subject of this approval causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. 35. This approval shall expire unless exercised within 24 months from the end of the appeal period as specified in Section 20.91.050 of the Newport Beach Municipal Code. Building Department 36. All exits shall remain free of obstructions and available for ingress and egress at all times. 37. The applicant is required to obtain all applicable permits from the City Building and Fire Departments. 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. 38. A covered wash -out area for refuse containers and kitchen equipment shall be provided and maintained, and the area drain directly into the sewer system, unless otherwise approved by the Building Director and Public Works Director in conjunction with the approval of an alternative drainage plan. Washing of refuse containers or restaurant equipment shall be prohibited in the parking lot and public alley. 39. Strict adherence to maximum occupancy limits is required. 40. The project will comply with the provisions of Chapter 14.30 of the Newport Beach Municipal Code for commercial kitchen grease disposal. Fire Department 41. Portable propane heaters are not allowed on the outdoor dining patio areas. Any heating units shall be installed under permit in accordance with the California Electrical Code or California Mechanical Code, 2007 Edition. STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, LaVonne M. Harkless, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing resolution, being Resolution No. 2008 -37 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 13th day of May 2008, and that the same was so passed and adopted by the following vote, to wit: Ayes: Henn, Rosansky, Daigle, Curry, Gardner, Mayor Selich Noes: None Absent: Webb Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 14th day of May 2008. (Seal) City Clerk Newport Beach, California