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HomeMy WebLinkAbout2017-9 - Upholding the Planning Commission's Approval of Use Permit No. UP2016-012 with Modified Conditions of Approval to Establish an Outdoor Dining Area Associated with an Existing Restaurant at 127 Marine Avenue (PA2015-016)RESOLUTION NO. 2017-9 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, UPHOLDING THE PLANNING COMMISSION'S APPROVAL OF USE PERMIT NO. UP2016-012 WITH MODIFIED CONDITIONS OF APPROVAL TO ESTABLISH AN OUTDOOR DINING AREA ASSOCIATED WITH AN EXISTING RESTAURANT AT 127 MARINE AVENUE (PA2015-016) WHEREAS, an application was filed by Dan Miller, with respect to property located at 127 Marine Avenue, and legally described as Balboa Island Sec 4 Lot 15 Blk & Lot 16 Blk 1 Ex E 10 Ft Lots 15 requesting to establish an outdoor dining area associated with an existing. restaurant. The proposed outdoor dining area also requires relocation of existing bike racks; WHEREAS, Mr. Miller proposes to construct a 200 -square -foot outdoor dining area located along the front of the structure on Marine Avenue. The proposed area is located within the public right-of-way; WHEREAS, the subject property is located within the Mixed Use Water Related Zoning District and the General Plan Land Use Element category is Mixed Use Water Related (MU -W2). The Coastal Land Use Plan category is Mixed Use Water Related (MU -W); WHEREAS, on March 19, 2009, the Planning Commission approved an amendment to Use Permit No. UP2009-002 allowing for the remodel of the restaurant and determining the Use Permit was consistent with the zoning provisions for alcohol sales. Conditions of approval were established to minimize potential impacts from the restaurant operations to the nearby neighborhood. Use Permit No. UP2009-002, as amended, and related conditions of approval remain in effect; WHEREAS, on December 3, 2015, the Planning Commission considered Use Permit No. UP2015-006 for a similar request to establish an outdoor dining area. The Use Permit application was accompanied by a request to amend the land use designation at 123 Marine Avenue to accommodate an existing legal nonconforming encroachment of the restaurant structure on that property. Because the action included a legislative action, the City Council was the final decision- making body (GP2015-002, LC2015-001, CA2015-010). The Planning Commission recommended denial of Use Permit No. UP 2015-006 and continued the land use amendment. To allow further consideration and revision of the subject applications, the applicant voluntarily withdrew both applications; WHEREAS, a public hearing was scheduled to occur on October 20, 2016 in the Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the public hearing was given in accordance with the Newport Beach Municipal Code (NBMC). At the request of the applicant, the Planning Commission continued the item to its regularly scheduled meeting on November 3, 2016; Resolution No. 2017-9 Page 2 of 5 WHEREAS, on November 3, 2016, the Planning Commission conducted a public hearing in the Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the public hearing was given in accordance with the NBMC. At conclusion of the hearing, the Planning Commission approved the project and adopted Resolution 2035 containing the written findings supporting the action; WHEREAS, following the Planning Commission's approval, a neighbor living adjacent to the subject property appealed the Planning Commission's approval to the City Council; WHEREAS, on January 24, 2017, the City Council held a noticed public hearing to consider the appeal in the Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the public hearing was given in accordance with the NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at the public hearing; and WHEREAS, on January 24, 2017 the City Council conducted a public hearing, and after the conclusion of the public hearing, the City Council directed staff to modify the proposed conditions of approval, which included the redesign and relocation of a portion of the proposed outdoor dining area to Park Avenue. NOW, THEREFORE, the City Council of the City of Newport Beach, California, hereby resolves as follows: Section 1: The City Council does hereby uphold the Planning Commission's approval of Use Permit No. UP2016-012 to establish an outdoor dining area associated with an existing restaurant at 127 Marine Avenue (PA2015-016) with the modified conditions of approval attached as Exhibit "A," and incorporated herein by reference. The City Council's decision is made in accordance with NBMC Section 20.52.020(F), and is supported by the following findings and facts: Finding: A. The use is consistent with the General Plan and any applicable specific plan; Fact in Support of Finding: The subject property is designated by the General Plan as Mixed Use Water Related. The proposed project is consistent with the MU -W2 land use category, which is intended to provide for marine -related uses including retail, restaurants, and visitor - serving uses with residential on the upper floors because the project consists of an existing restaurant and residential use. Finding: B. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code; Resolution No. 2017-9 Page 3 of 5 Facts in Support of Finding: 1. The subject property is located in the Mixed Use Water Related Zoning district. Eating and drinking establishments are permitted within this district subject to the approval of a use permit. 2. The proposed outdoor dining area is approximately 200 square feet in size which does not require parking under Table 3-10 in NBMC Chapter 20.40.040 (Off -Street Parking Spaces Required). Finding: C. 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 proposed outdoor dining area is located along Marine Avenue and Park Avenue, an active mixed use commercial area with high pedestrian use. Outdoor dining areas are encouraged in mixed use areas as they contribute to the vibrancy of the area. 2. The subject dining area is limited to a four (4) foot extension from the building edge along Marine Avenue and a three (3) foot extension from the property line along Park Avenue. The sidewalk will be maintained at six (6) feet which is adequate to accommodate pedestrian passage. 3. As conditioned, the outdoor dining area and glass doors will close at 9:00 p.m. or 10:00 p.m., as detailed in Condition of Approval No. 14. 4. As conditioned, the proposed glass doors are double paned (or similar material) to provide improved, noise attenuation, as compared to the existing exterior wall and windows. 5. A portion of the existing bike racks on Marine Avenue will be re -located within the public right-of-way on the 200 and/or 300 block of Marine Avenue. Findin : D. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities, and Fact in Support of Finding: Establishment of the outdoor dining area does not impact public and emergency vehicle access and public services and utilities, as the improvements are limited to a 200 -square -foot dining area and do not encroach into the roadway. Resolution No. 2017-9 Page 4 of 5 Finding: E. 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: The project includes modified conditions of approval to ensure that potential conflicts With surrounding land uses are minimized to the greatest extent possible. Closing the outdoor dining area and the noise attenuated glass doors at 9:00 p.m. daily, except Fridays and Saturdays between Memorial Day weekend and Labor Day, on Federal holidays, and during community events when the outdoor dining area shall close by 10:00 p.m., or prior to commencement of live entertainment will ensure compliance with NBMC Chapter 10.26 (Community Noise Control). 2. An acoustical analysis, prepared by KFEB Acoustics on March 20, 2016, concluded that with the implementation of proposed noise reduction measures the live performances will comply with the City's nighttime noise threshold limit of 50 dBA. 3. Establishment of the outdoor dining area will require that bike racks be relocated to the 200 and/or 300 blocks of Marine Avenue. Neighboring residents have expressed concerns with noise created by the public loitering near the racks during late hours. Relocation of a portion of the racks to a more central location, away from residential uses, should address noise concerns associated with the bike racks. Section 2: The City Council hereby waives portions of City Council Policy L-21, "Sidewalk Cafe Standards and Procedures", to allow for a six (6) foot wide minimum pedestrian clear width sidewalk in a potentially heavy pedestrian traffic area; to allow a barrier that would be permanently bolted in place; to allow the outdoor dining area to be maintained above the level of the existing sidewalk; and to allow the outdoor dining area to be located less than ten feet from the corner of the building. The City Council also require the applicant to apply for an Annual Outdoor Dining Encroachment Permit and pay all applicable fees and directs staff to relocate the existing bike racks within the public right-of-way adjacent to the Village Inn to new bike corrals in the 200 and/or 300 blocks of Marine Avenue. Section 3: This action is categorically exempt under Section 15303, of the State California Environmental Quality Act (CEQA) Guidelines — Construction or Conversion of Small Structures because the improvements associated with the outdoor dining area are considered accessory to the main structure. The project is also categorically exempt under Section 15302, of the State CEQA Guidelines — Class 2 (Replacement or Reconstruction) on the basis that the land use amendment does not result in new development or change the current use of the property located at 127 Marine Avenue. Section 4: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. Resolution No. 2017-9 Page 5 of 5 Section 5: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Section 6: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this 14'" day of February, 2017. ATTEST: Leilani 1. Brown City Clerk APPROVED AS TO FORM: CITY ATTO NEY'S OFFICE /46 (.r • ) Aaron C. Harp City Attorney Kevin Muld n Mayor EXHIBIT "A" CONDITIONS OF APPROVAL PLANNING 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. Use Permit No. UP2016-012 shall expire unless exercised within twenty-four (24) months from the date of approval as specified in NBMC Section 20.54.060, unless an extension is otherwise granted. Use Permit UP2009-002 and the 2012 Live Entertainment Permit, and associated conditions of approval, shall remain in effect unless amended by this Use Permit. 3. The project is subject to all applicable City ordinances, policies, and standards. 4. 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. 5. This Use Permit may be modified or revoked by the Planning Commission should they determine that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 6. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to this Use Permit or the processing of a new Use Permit. 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. All noise generated by the proposed use shall comply with the provisions of NBMC Chapter 10.26 (Community Noise Control), all other applicable noise control requirements in the NBMC and Condition No. 8 of the 2012 Live Entertainment Permit; however, NBMC Section 10.26.035(L) shall not apply. Should the property be sold orotherwise come under different ownership, anyfuture owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing agent. 10. No exterior amplified music, sound system, televisions, outside paging system shall be utilized in conjunction with the outdoor dining area. 11. 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. Resolution No. 2017-9 - Exhibit A Page 2 of 5 12. 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. 13. 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 the Village Inn Use Permit including, but not limited to, Use Permit No. UP2016- 012. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attomeys' 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, attomeys' 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. 14. The hours of the outdoor dining area shall be limited to 7:00 a.m. to 9:00 p.m. daily, except Fridays and Saturdays between Memorial Day weekend and Labor Day, on Federal holidays, and during community events when the outdoor dining area hours shall be 7:00 a.m. to 10:00 p.m. The outdoor dining area and its noise attenuated glass doors shall close prior to the commencement of live entertainment. Upon closing the outdoor dining area and when live entertainment is offered, the noise attenuated glass doors which access the outdoor dining area shall be closed and no customers shall remain within the outdoor dining area when it is closed. 15. Live entertainment shall be limited to 10:00 p.m. on nights before a school day, as calendared by the Newport Mesa Unified School District, and limited to midnight on "non -school" nights and on all Fridays and Saturdays. 16. On New Year's Eve, the restaurant shall be permitted to operate until 1:00 a.m. on January 1st. Live entertainment and alcoholic beverage service shall cease at or before 12:30 a.m. 17. All glass doors which provide access to the outdoor dining area and the door and window on the south side of the building shall be noise attenuated to a STC rating of 34 per the Acoustical Evaluation and Design Recommendations dated March 20, 2016 by KFEB Acoustics. The effectiveness of the noise attenuation shall be documented in the door specifications and reviewed during the plan check process. 18. The outdoor seating area shall not be permanently enclosed; however, roll -down plastic shielding for protection from weather elements that can be rolled up after hours is allowed. Canvas or other "temporary materials" that are affixed shall be prohibited. Resolution No. 2017-9 - Exhibit A Page 3 of 5 19. Prior to finalizing the building permit for the outdoor dining area, interior acoustical absorption panels shall be installed per the Acoustical Evaluation and Design Recommendations dated March 20, 2016 by KFEB Acoustics. 20. The assumptions and recommendations presented in the Acoustical Evaluation and Design Recommendations prepared by KFEB Acoustics on March 20, 2016 shall be maintained by the restaurant pertaining to upgrades and maintenance of attenuating materials (i.e., door and window seals). 21. Live entertainment shall be limited to a maximum of four (4) musicians and/or vocalists using amplified instruments and microphones at any one time. If bass sounds or noise become an issue, the applicant will work with the Director of Community Development to provide sound barriers or screens for the percussion or an all -electronic percussion system shall be utilized so that speaker direction can control percussion as well. 22. 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. 23. There shall be no reduced price alcoholic beverage promotions offered by the restaurant after 9:00 P.M. 24. Food service from the regular menu shall be available to patrons up to thirty (30) minutes before the schedule closing time of the restaurant. 25. Prior to occupying the outdoor dining area, the applicant shall obtain an Operator License from the Newport Beach Police Department. A security plan shall be submitted with the Operator License application. Building Division 26. 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. 27. If the abatement period is extended, prior to issuance of building permits for the outdoor dining area, a building permit application shall be filed to address the life safety and structural issues associated with the portion of the restaurant structure which encroaches onto 123 Marine Avenue. 28. If the abatement period is extended, prior to building permit final (certificate of occupancy) of the outdoor dining area, building permits shall be obtained for the portion of the restaurant structure which encroaches onto 123 Marine Avenue. Resolution No. 2017-9 - Exhibit A Page 4 of 5 29. Structural plans shall be required for the expansion of outdoor dining. A building permit shall be required. 30. Wheelchair accessible path of travel to the area to the outdoor dining is required. 31. Delineate a wheelchair accessible seat in the outdoor dining area. 32. In addition to the requirements listed above, additional disable access upgrades are required which shall include: the entrance, bar counter, and/or restrooms. Accessible upgrades shall be limited to twenty percent (20%) of the value of the work for outdoor dining. Public Works 33. The applicant shall obtain an Annual Outside Dining Encroachment Permit from the Public Works Department and pay all applicable fees and costs for the proposed outdoor dining area. 34. This use permit shall not become effective until such time the City Council authorizes the following: a. Waiver of City Council Policy L-21 as it pertains to specific components of the outdoor dining area. Areas for the City Council's consideration is the need to raise the dining area six (6) -inches above the sidewalk, allowance of a six (6) - foot wide sidewalk instead of eight (8) -feet, the permanent nature of the guardrails, and the projection of the accordian doors into the right-of-way. b. Relocation of the affected bike racks or new bike corrals to be installed in the 200 and/or 300 block of Marine Avenue. 35. The applicant shall submit $6,000 to the City of Newport Beach within thirty (30) calendar days of the effective date of the City Council authorizing relocation of the bike racks. These funds will be used for the purchase and installation of the bike corrals to accommodate more than ten (10) bikes and other related improvements. The new bike corrals shall be installed prior to issuance of building permits for the outdoor dining area, and in any event, within one hundred eighty (180) calendar days of the effective date of the City Council action on the waiver of City Council Policy L-21 and authorization to relocate the bike racks. 36. Within three months of certificate of occupancy and full operation of the outdoor dining area, the City shall undertake measurements of the noise generated by the outdoor dining area, at the cost to the applicant. The analysis shall be considered by the Planning Commission at a noticed public hearing to ensure compliance with the conditions of approval and the City's Noise Ordinance. Modifications to conditions of approval may be required of the project is not in compliance. Resolution No. 2017-9 - Exhibit A Page 5 of 5 37. Prior to certificate of occupancy, the applicant shall install landscaping on-site to the greatest extent possible, as determined acceptable to the Community Development Director. 38. The stage shall be located per the approved plans, but the applicant may relocate the stage to minimize noise impacts with the prior written approval of the Community Development Director. The speakers for entertainment shall face the west and/or north and shall be directed away from the south to minimize impacts to adjacent residential properties. 39. The interior sound curtain along the south restaurant wall shall be fully extended across the entire wall during live entertainment. 40. The sidewalk on Park Avenue shall be widened to allow outdoor dining to occupy up to three (3) feet of the public right of way, while maintaining a six (6) -foot wide sidewalk. The final design shall be approved by the Public Works Director, and the applicant shall perform, or contract with the City to perform, all required improvements and be responsible for the cost of all necessary improvements in the public right-of-way. 41. The outdoor dining area along Marine Avenue shall be four (4) feet in width as measured from the building wall and may be raised to match the finish floor of the restaurant interior, as required to comply with ADA requirements. The dining area will generally wrap around from the Park Avenue dining area and extend from the building's north edge for approximately thirty-two (32) feet to the south. An access door may be located at the northernmost end of the outdoor dining area, but shall be no more than forty-two (42) inches wide. No other doors shall be permitted along Marine Avenue. 42. Deliveries and refuse collection for the restaurant shall be prohibited between the hours of 10:00 p.m. and 7:00 a.m., daily. 43. Televisions shall not be oriented for the purposes of viewing from the public right of way. 44. The applicant will install a solid wall or plexiglass wall at the south end of the Marine Avenue outdoor dining area. 45. The applicant may encroach three (3) feet into the right of way on Park Avenue with an awning or other similar cover over the outdoor dining area.