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HomeMy WebLinkAboutPC2019-002 - APPROVE MINOR USE PERMIT NO. UP2018-011 TO AMEND USE PERMIT UP3031 TO MODIFY THE HOURS OF OPERATION AND ALLOW A TYPE 47 (ON-SALE GENERAL) ALCOHOL LICENSE AT AN EXISTING FOOD SERVICE, EATING AND DRINKING ESTABLISHMENT - 703 EAST BALBOA BOULEVARESOLUTION NO. PC2019-002 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING MINOR USE PERMIT NO. UP2018-011 TO AMEND USE PERMIT NO. UP3031 TO MODIFY THE HOURS OF OPERATION AND ALLOW A TYPE 47 (ON -SALE GENERAL) ALCOHOL LICENSE AT AN EXISTING FOOD SERVICE, EATING AND DRINKING ESTABLISHMENT LOCATED AT 703 EAST BALBOA BOULEVARD (PA2018-169) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. An application was filed by Pat Brown representing Great Mex Grill with respect to property located at 703 East Balboa Boulevard, and legally described as Lot 2, Block 10, of the Balboa Tract, being a subdivision of part of Lots 8 and 9 Sec 35.T6S.R10YY.SB.B&M, being a replat of part of said Lot 8 recorded as Bayside in Book 3 Page 38 Miscellaneous Maps, Records of Orange County, California and a subdivision of part of said Lots 8 and 9 lying East of said Bayside. 2. A minor use permit to amend Use Permit No. UP3031 to allow a Type 47 (On -Sale General) alcoholic beverage license and to allow earlier hours of operation at an existing food service establishment. Great Mex Grill Restaurant currently operates with a Type 41 (On -Sale Beer and Wine) alcoholic beverage license with hours of operation from 10:00 a.m. through 10:00 p.m., daily and the proposed hours of operation are 7:00 a.m. through 10:00 p.m., daily. No physical interior or exterior alterations are proposed. If approved, this minor use permit would supersede Use Permit No. UP3031. 3. The subject property is designated MU -V (Mixed -Use Vertical) by the General Plan Land Use Element and is located within the MU -V (Mixed -Use Vertical) zoning district. 4. The subject property is located within the coastal zone. The Coastal Land Use Plan category is MU -V (Mixed -Use Vertical) and it is located within the MU -V (Mixed -Use Vertical) Coastal Zoning District. A coastal development permit is not required because the request to change the type of permitted Alcoholic Beverage Control ("ABC") license and operating hours does not intensify or expand the existing eating and drinking establishment use. 5. A public hearing was held on January 17, 2019, in the Council Chambers at 100 Civic Center Drive, Newport Beach. 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 Planning Commission at this hearing. Planning Commission Resolution No. PC2019-002 Page 2 of 12 SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 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, Chapter 3, because it has no potential to have a significant effect on the environment. 2. The Class 1 exemption includes the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use. The proposed project does not include any interior or exterior alterations to the existing eating and drinking establishment. No increase of gross floor area or net public area would occur with the approval of the requested amendment. 3. The exceptions to this categorical exemption under Section 15300.2 are not applicable. The project location does not impact an environmental resource of hazardous or critical concern, does not result in cumulative impacts, does not have a significant effect on the environment due to unusual circumstances, does not damage scenic resources within a state scenic highway, is not a hazardous waste site, and is not identified as a historical resource. SECTION 3. REQUIRED FINDINGS. In accordance with City of Newport Beach Zoning Code ("Zoning Code") Section 20.48.030 (Alcohol Sales) the following findings and facts in support of such findings are set forth: Finding: A. The use is consistent with the purpose and intent of Zoning Code Section 20.48.030 (Alcohol Sales). Facts in Support of Finding: In finding that the proposed use is consistent with Zoning Code Section 20.48 030 (Alcohol Sales) the following criteria must be considered: The crime rate in the reporting district and adjacent reporting districts as compared to other areas in the City. The Part One Crimes Rate in Reporting District 12 (RD 12) is higher than the Part One Crimes Rate for the City and adjacent districts. The crime rate in RD12 is 1 percent less than the Citywide reporting district average. The crime rate in this area is largely due to the number of visitors to the Balboa Peninsula, the high concentration of restaurants, and the high ratio of non-residential to residential uses. The findings can be made given the concentration of crimes and Balboa Village is intended to accommodate restaurants. The service of alcoholic beverages would provide additional menu options for customers and would enhance the economic viability of the business. Planning Commission Resolution No. PC2019-002 Page 3 of 12 2. The Police Department has reviewed the proposal, provided operating conditions of approval, and has no objection to the addition of the alcoholic beverage license subject to appropriate conditions of approval. The operation of the establishment includes the approved floor plan with no separate bar counter or area and a closing hour of 10 p.m. ii. The numbers of alcohol-related calls for service, crimes, or arrests in the reporting district and in adjacent reporting districts. The total percentage of arrests related to alcohol-related calls for service, crimes, or arrests in RD 12 is higher than RD 11, RD 13 and RDI 5. The subject property has zero calls for service. The Police Department has reviewed the proposal and has no objection to the applicant's request. N. 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. The subject property is located in a mixed-use district where residential development is permitted above the first floor. There is an existing residence located to the rear of the existing food service establishment on the subject property. Mixed-use developments that include residential units are located on two adjacent properties along East Balboa Boulevard. The change of ABC license type and the existing eating and drinking establishment is not anticipated to significantly change the relationship of these adjacent land uses. 2. The nearest daycare, Children's Center By the Sea, is located approximately 1.1 miles to the west along West Balboa Boulevard. The nearest hospital, Hoag Hospital, is located approximately 2.2 miles to the northwest. The nearest place of recreation, the beach at Balboa Pier, is located approximately 530 feet to the south. The nearest churches, Our Lady of Mount Carmel Church and Christ Church by the Sea, are located approximately 1.1 miles to the west along West Balboa Boulevard. The nearest school, Newport Elementary School, is located approximately 1.1 miles to the west along West Balboa Boulevard. The proposed use is otherwise surrounded by other commercial retail, office, and residential uses. 3. The Balboa Peninsula is generally characterized by a high number of visitors, in which commercial and residential zoning districts are located in close proximity to one another. 4. Eating and drinking establishments with incidental alcohol service are common in Balboa Village. The proposed change in ABC license type and an earlier opening hour is not anticipated to alter the operational characteristics of the use such that it becomes detrimental to the area. The draft resolution includes conditions of approval to further minimize negative impacts to surrounding land uses and ensure that the use remains compatible with the surrounding community Planning Commission Resolution No. PC2019-002 Page 4 of 12 iv. The proximity to other establishments selling alcoholic beverages for either off-site or on-site consumption. 1. Balboa Village is intended to accommodate multiple restaurants and the existing restaurant is located in close proximity to other food service establishments. This includes an adjacent vacant take-out service limited eating and drinking establishment located at 705 East Balboa Boulevard, Balboa Lily's (Type 41, On -Sale Beer and Wine) located at 711 East Balboa Boulevard, and Cruiser's (Type 47, On -Sale General), located at 801 East Balboa Boulevard. The RD12 statistics do not indicate a legal overconcentration of alcohol licenses within this reporting district. 2. The per capita ratio of one license for every 111 residents is higher than several adjacent districts with the exception of Census Tract 635, which has a per capita ratio of one license for every 70 residents. The average ratio for Orange County is one license for every 467 residents. This higher ratio is due to the higher concentration of commercial land uses, alcohol licenses attributed to adjacent marina operations, lower number of residential properties, and high number of restaurants in Balboa Village. While the proposed restaurant is located in close proximity to other establishments, the location in Balboa Village -an established mixed-use commercial area - together with the proposed operational characteristics would make the service of alcoholic beverages appropriate. V. Whether or not the proposed amendment will resolve any current objectionable conditions. 1. No objectionable conditions are presently occurring at the site 2. The existing eating and drinking establishment, including alcoholic beverage sales, has operated from this location since 2002. No calls for service were reported in 2017. 3. The project has been reviewed and conditioned to help ensure that the purpose and intent of Zoning Code Section 20.48 030 (Alcohol Sales) 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 by the Police Department relative to the sale of alcoholic beverages will ensure compatibility with the surrounding uses and minimize alcohol related impacts. 4. The establishment is required to close by 10 p.m., daily, which will ensure the use does not become a late night bar, tavern, or nightclub. 5. The resolution includes conditions of approval to limit objectionable conditions related to noise and trash from the establishment. All employees serving alcohol will be required to be at least 21 years of age and receive ABC -required Licensee Education on Alcohol and Drugs ("LEAD") or Responsible Beverage Service ("RBS") training. In accordance with Zoning Code Section 20.52.020 (Conditional Use Permits and Minor Use Permits) , the following findings and facts in support of such findings are set forth: Planning Commission Resolution No. PC2019-002 Paae 5 of 12 Finding: B. The use is consistent with the General Plan and any applicable specific plan. Facts in Support of Finding: 1. The General Plan and Coastal Land Use Plan land use designation for this site is as MU - V (Mixed -Use Vertical). The MU -V designation is intended to provide areas appropriate for the development of mixed-use structures that vertically integrate residential dwelling units above the ground floor with retail uses including office, restaurant, retail, and similar nonresidential uses located on the ground floor or above. The existing ground floor eating and drinking establishment with alcohol service is intended to serve nearby employees, residents, and visitors and is consistent with the MU -V designation. Therefore, the use is consistent with this land use category. 2. 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 in the MU -V (Mixed -Use Vertical) zoning district. This designation is intended to provide for areas appropriate for the development of mixed-use structures that vertically integrate residential dwelling units above the ground floor with retail uses including office, restaurant, retail, and similar nonresidential uses located on the ground floor or above. The existing ground floor eating and drinking establishment is consistent with the land uses allowed in the MU -V zoning district. Food service, eating and drinking establishments are listed as a conditionally permitted use in the MU -V Zoning district; approval of a minor use permit is required due to its location within 500 feet of a residential zoning district. The requested application is to add additional alcohol service to the existing eating and drinking establishment. 2. The existing food service, eating and drinking establishment does not provide on-site parking. Use Permit No. UP3031 authorized the use with four in -lieu parking spaces. However, the property is located in the Balboa Village Parking Management Overlay District and the payment of in -lieu parking fees have been suspended in accordance with Zoning Code Section 20.28.030.D.1.e (Suspension of In -Lieu Parking). No intensification or enlargement is proposed; therefore, no additional parking is required. 3. As conditioned, the proposed establishment will comply with Zoning Code standards for eating and drinking establishments. Planning Commission Resolution No. PC2019-002 Paae 6 of 12 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 existing establishment has operated at this location since 2002 and has proven compatible with the existing and allowed uses in the area, which consist of retail commercial, office, and residential developments. The project includes conditions of approval to ensure that the potential for conflicts are continues to be minimized to the greatest extent possible 2. The property and surrounding properties on the block are developed with a variety of structures consisting of commercial retail, service, mixed-use, and residential dwelling units. As conditioned, the allowed hours of operation will be 7:00 a.m. to 10:00 p.m., daily, which will minimize late night disturbances to residences near the property. 3. The existing food service use utilizes an existing City trash enclosure located 208 Washington Street that is surrounded by three walls and a self -latching gate. It is conveniently located where materials can be deposited and collected, and does not impede access to parking spaces. 4. Conditions of approval prohibit a separate bar or alcohol service area and live entertainment and dancing are not permitted. 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 existing establishment is accessible from East Balboa Boulevard, which provides convenient access for motorists, pedestrians, and bicyclists. 2. The project site is located within an existing commercial building and the tenant space is designed and developed for an eating and drinking establishment. The design, size, location, and operating characteristics of the use are compatible with the surrounding neighborhood. 3. The existing food service establishment does not provide on-site parking. Use Permit No. UP3031 authorized the use with four in -lieu parking spaces. However, the property is located in the Balboa Village Parking Management Overlay District and the payment of in -lieu parking fees have been suspended in accordance with Zoning Code Section 20.28.030.D.1.e (Suspension of In -Lieu Parking). Planning Commission Resolution No. PC2019-002 Page 7 of 12 4. No intensification or enlargement is proposed with the addition of a Type 47 alcohol license and extended hours of operation; therefore, no additional on-site parking is required. The Balboa Village area is a relatively dense area with multiple uses within a short distance of each other and is conducive to a significant amount of walk-in patrons. Furthermore, a municipal parking lot and on -street parking is available in the area to accommodate Balboa Village businesses. 5. The Fire Department reviewed the project and site to ensure adequate public and emergency vehicle access is provided. 6. Although no physical improvements are proposed at this time, future site and tenant improvements must comply with the Zoning Code and all Building, Public Works, and Fire Codes for permits to be issued. 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. Facts in Support of Finding: 1 — The -project -has- been -reviewed -and -includes conditions of approval to ensure that potential conflicts with the surrounding land uses are minimized to the greatest extent possible. The operator is required to take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks and areas surrounding the subject property and adjacent properties during business hours, if directly related to the patrons of the establishment. 2. The addition of a Type 47 (On -Sale, General) alcohol license and expanded morning hours of operation will add menu options and continue to provide a public convenience to the surrounding neighborhood and visitors to the area. The changes will also provide an economic opportunity for the business and property owner. 3. The eating and drinking establishment is not allowed to operate as a bar, tavern, cocktail lounge, or nightclub as defined by the NBMC. 4. The proposed use includes limited hours and there is no increased parking demand. Based upon the Zoning Code requirements, the proposed use will not result in a detriment to the surrounding community. Planning Commission Resolution No. PC2019-002 Paae 8 of 12 SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach hereby approves Minor Use Permit No. UP2018-011, subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. This approval allows a food service, eating and drinking establishment with no late hours and a Type 47 (On -Sale General) Alcoholic Beverage Control (ABC) license located at 703 East Balboa Boulevard. 2. 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. 3. This resolution supersedes Use Permit No. 3031, which upon vesting of the rights authorized by this Minor Use Permit, shall become null and void. PASSED, APPROVED, AND ADOPTED THIS 17TH DAY OF JANUARY, 2019. AYES: Ellmore, Kleiman, Koetting, Kramer, Lowrey, Weigand and Zak NOES: ABSTAIN: ABSENT: M a Planning Commission Resolution No. PC2019-002 Page 9 of 12 EXHIBIT "A" CONDITIONS OF APPROVAL (Project -specific conditions are in italics) PLANNING 1. The development shall be in substantial conformance with the approved site plan, floor plans and building elevations stamped and dated with the date of this approval. (Except as modified by applicable conditions of approval.) 2. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 3. This Minor Use Permit may be modified or revoked by the Planning Commission 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. 4. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to this Minor Use Permit or the processing of a new Minor Use Permit. 5. The hours of operation shall be limited from 7:00 a.m. through 10:00 p.m., daily. 6. Alcohol service shall be limited to 10.00 a.m. through 10.00 p.m., daily. 7. The food service establishment shall be prohibited from providing a physical bar or separate area to serve alcoholic beverages. 8. That all signs shall conform with NBMC Chapter 20.42 (Sign Standards). 9. That kitchen exhaust fans shall be designed to control odors and smoke in accordance with Rule 50 of the South Coast Air Quality Management District. 10. That a washout area for the restaurant trash containers be provided in such a way as to ensure direct drainage into the sewer system and not into the Bay or storm drains if required by the Building Division. 11. That grease interceptors shall be installed on all fixtures in the restaurant facility where grease may be introduced into the drainage systems in accordance with the provisions of the Uniform Plumbing Code if required by the Building Division. 12. Containers for the disposal of trash shall be provided on the public sidewalk in the manner subject to the approval of the Planning Division. Planning Commission Resolution No. PC2019-002 Pape 10 of 12 13. 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 may be cause for revocation of the use permit. 14. The eating and drinking establishment is allowed a Type 47 (On -Sale General) ABC License. The sale of alcohol for off-site consumption is prohibited. 15. Approval does not permit the premises to operate as a bar, tavern, cocktail lounge, or nightclub as defined by the NEMC. 16. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee. 17. No games or contests requiring or involving the consumption of alcoholic beverages shall be allowed. 18. There shall be no reduced price alcoholic beverage promotions after 9:00 p.m. 19. There shall be no live entertainment or dancing allowed on the premises. 20. Food service from the regular menu shall be made available to patrons until closing. 21. 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. 22. "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 if prohibited (excluding charges for prix fixe meals). 23. 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 shall be prohibited. 24. 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 twenty (20) feet of the premises. Graffiti shall be removed within forty-eight (48) hours of written notice from the City. 25. All persons selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible beverage service within sixty (60) days of hire or within sixty (60) days of approval of the use permit. This training must be updated at least every three (3) years. The certified program must meet the standards of the Department of Alcoholic Beverage Control. Records of each owner, manager, and employee's successful completion of the required certified training program shall be Planning Commission Resolution No. PC2019-002 Page 11 of 12 maintained on the premises and be presented upon request by a representative of the City of Newport Beach. 26. Outdoor dining shall not be permitted. 27. Strict adherence to maximum occupancy limits is required. 28. The applicant shall maintain a security recording system with a 30 -day retention and make these recordings available to police upon request. 29. 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 with the provisions of NBMC Chapter 10.26 and other applicable noise control requirements of the NEMC. 30. 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. 31. No outside paging system shall be utilized in conjunction with this establishment. 32. 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). 33. 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. 34. 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. 35. 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 NBMC to require such permits. 36. This approval shall expire and become void unless exercised within twenty-four (24) months from the actual date of review authority approval, except where an extension of time is approved in compliance with the provisions of NBMC Title 20 Planning and Zoning. Planning Commission Resolution No. PC2019-002 Paqe 12 of 12 37. 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 Great Mex Minor Use Permit including, but not limited to, Minor Use Permit No. UP2018-011 (PA2018-169). 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. Building Division Conditions 38. For any physical tenant improvements, 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 for tenant improvements. 39. A list of "good house -keeping" practices will be incorporated into the long-term post - construction operation of the site to minimize the likelihood that pollutants will be used, stored or spilled on the site that could impair water quality. These may include frequent parking area vacuum truck sweeping, removal of wastes or spills, limited use of harmful fertilizers or pesticides, and the diversion of storm water away from potential sources of pollution (e.g., trash receptacles and parking structures).