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HomeMy WebLinkAboutZA2017-065 - MINOR USE PERMIT FOR TYPE 41 ABC LICENSE - 711 Balboa EastRESOLUTION NO. ZA2017-065 A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH APPROVING MINOR USE PERMIT NO. UP2017-016 ADDING ALCOHOL SALES AND SERVICE WITH A TYPE 41 LICENSE TO AN EXISTING RESTAURANT WITH NO LATE HOURS LOCATED AT 711 EAST BALBOA BOULEVARD (PA2017-124) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Balboa Lily’s, with respect to property located at 711 East Balboa Boulevard, and legally described as Lots 6, 7 and 8 in Block 10 of the Balboa Tract in the City of Newport Beach, County of Orange, State of California, requesting approval of a minor use permit. 2. The applicant proposes the sale and service of beer and wine in conjunction with an existing restaurant classified as a food service, eating and drinking establishment. The applicant is pursuing a Type 41 (On-Sale Beer and Wine – Eating Place) Alcoholic Beverage Control (ABC) license. There are no other proposed changes to the restaurant. The allowed hours of operation will remain from 7 a.m. to 10 p.m., daily. 3. The subject property is designated Mixed Use Vertical (MU-V) by the General Plan Land Use Element and is located within the Mixed-Use Vertical (MU-V) Zoning District. 4. The subject property is located within the coastal zone. The Coastal Land Use Plan category is Mixed Uses Vertical (MU-V) and it is located within the Mixed-Use Vertical (MU- V) Coastal Zone District. 5. A public hearing was held on August 24, 2017, in the Corona del Mar Conference Room (Bay E-1st Floor) 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. Evidence, both written and oral, was presented to, and considered by, the Zoning Administrator at this hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This project is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment. 2. The Class 1 exemption includes the ongoing use of existing buildings where there is negligible or no expansion of use. The proposed project involves the addition of the Type Zoning Administrator Resolution No. ZA2017-065 Page 2 of 10 07-11-17 41 ABC License to the existing eating and drinking establishment with no other alterations or changes. SECTION 3. REQUIRED FINDINGS. In accordance with Section 20.48.030 (Alcohol Sales) of the Newport Beach Municipal Code, 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 Section 20.48.030 (Alcohol Sales of the Zoning Code. Facts in Support of Finding: In finding that the proposed use is consistent with Section 20.48.030 of the Zoning Code, the following criteria must be considered: i. The crime rate in the reporting district and adjacent reporting districts as compared to other areas in the City. 1. The subject property is located in Reporting District 12 (RD 12). The Part One Crimes (Part One Crimes are the eight most serious crimes defined by the FBI Uniform Crime Report – homicide, rape, robbery, aggravated assault, burglary, larceny-theft, auto theft, and arson) crime rate in RD 12 is comparable to adjacent RD 11 and RD 13, which are predominantly residential, and lower than the Citywide average. 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 o r 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. 1. The total number of alcohol-related calls for service, crimes, or arrests in RD 12 is higher than RD 11, but lower than adjacent RDs 13 and 15. RD 11 is comprised of residential properties, so the lower amount of alcohol-related incidents is expected. The Police Department has reviewed the proposal and has no objection. 2. Year to date, one call for service representing less than one percent of all calls for service in the RD has been reported at the subject property. The call for service was not specifically related to the existing restaurant. 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. Zoning Administrator Resolution No. ZA2017-065 Page 3 of 10 07-11-17 1. The eating and drinking establishment is located within a multi-tenant building fronting East Balboa Boulevard and Main Street. There are six residential units above on the second floor. The mixed-use development is consistent with the MU-V General Plan designation. The property is not located within close proximity to any day care centers, hospitals, places of worship, schools, or similar uses that typically attract minors. The closest park is Peninsula Park, which is approximately 200 feet southeast of the property. 2. The nature of Balboa Village is to provide goods, services, and entertainment, including eating and drinking establishments, designed to foster visitor and resident activity from travelers down the Peninsula and residents nearby. The nearest residential uses are located on the second floor above the subject establishment. 3. Eating and drinking establishments with incidental alcohol service are common in Balboa Village and the proposed ABC license in conjunction with an early closing hour is not anticipated to alter the operational characteristics of the use such that it becomes detrimental to the area. iv. The proximity to other establishments selling alcoholic beverages for either off -site or on- site consumption. 1. The closest establishments are Cruisers Pizza immediately east and BJ’s Pizza immediately south and Cabo Cantina located approximately 175 feet south on Main Street, which are full service restaurants. Other establishments selling alcoholic beverages operate within Balboa Village, near the subject restaurant. There is no evidence suggesting a full-service restaurant use has been or will be detrimental to surrounding properties or the neighborhood. v. Whether or not the proposed amendment will resolve any current objectionable conditions. 1. An eating and drinking establishment has operated at the subject property since the 1960s with no operating issues or complaints. No objectionable conditions are presently occurring at the site and this minor use permit as conditioned is intended to avoid future objectionable conditions. 2. The project has been reviewed and conditioned to help ensure that the purpose and intent of Section 20.48.030 (Alcohol Sales) of the Zoning Code 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. 3. The existing hours of operation of the establishment will minimize the potential effects on land use. The establishment closes by 10 p.m., daily, which will ensure the use does not become a late night bar, tavern, or nightclub. Zoning Administrator Resolution No. ZA2017-065 Page 4 of 10 07-11-17 In accordance with Section 20.52.020 (Conditional Use Permits and Minor Use Permits) of the Newport Beach Municipal Code, 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 site is designated MU-V by the General Plan Land Use Element, which is intended to provide for the development of properties for mixed-use structures that vertically integrate housing with commercial uses, including retail, office, restaurant, and similar nonresidential uses. 2. The existing eating and drinking establishment is located within Balboa Village along East Balboa Boulevard in a mixed-use development with residential units above the ground floor. The sale and service of alcohol will provide a convenience for patrons and will help to maintain a vibrant commercial use on the ground level, consistent with the MU-V land use designation. The earlier closing hour of 10 p.m. will help to ensure the use remains compatible. 3. The subject 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 site is located within the MU-V Zoning District consistent with the General Plan Land Use Element. See Fact in Support of Finding B1. 2. The existing eating and drinking establishment operates pursuant to Variance No. 993 and Staff Approval No. SA2006-006. Minimal conditions of approval were placed on the operation. 3. The use will remain a food service, eating and drinking establishment and the addition of the Alcoholic Beverage Control License will not alter or intensify the existing use. Further, there will be no change to the floor area including the existing net public area and seats or the hours of operation. Finding: D. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity; Zoning Administrator Resolution No. ZA2017-065 Page 5 of 10 07-11-17 Facts in Support of Finding: 1. The addition of the alcohol license does not change the operating characteristics of the existing eating and drinking establishment. 2. The eating and drinking establishment will remain complementary to the other uses in Balboa Village, which includes retail stores, restaurants, services, and other commercial uses. Success of the subject establishment should help to reenergize the area with its prominent corner location at East Balboa Boulevard and Main Street, making it a viable commercial node for the neighborhood and visitors. 3. The eating and drinking establishment will continue to provide a convenience for residents of the neighborhood and visitors to the area . 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 eating and drinking establishment within has proven to be physically suitable in terms of design, location, shape, and size to support the use. The physical characteristics of the site are not changing with the addition of the alcohol license. 2. Adequate public and emergency vehicle access, public services, and utilities are provided for on-site. 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, je opardize, 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 help 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 eating and drinking establishment will continue to service the neighborhood by providing dining services as a public convenience to the surrounding residential Zoning Administrator Resolution No. ZA2017-065 Page 6 of 10 07-11-17 neighborhood as well as visitors. The service of alcohol will continue to complement the principal use of the facility and provide an economic opportunity for the property owner to maintain a successful business in a way that best serves the community. 3. 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 approves Minor Use Permit No. UP2017-016, subject to the conditions set forth in Exhibit “A,” which is attached hereto and incorporated by reference. 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 Staff Approval No. SA2006-006 (PA2006-105) and Variance No. 0993, which upon vesting of the rights authorized by this Minor Use Permit, shall become null and void. PASSED, APPROVED, AND ADOPTED THIS 24TH DAY OF AUGUST, 2017. _____________________________________ Patrick J. Alford, Zoning Administrator Zoning Administrator Resolution No. ZA2017-065 Page 7 of 10 07-11-17 EXHIBIT “A” CONDITIONS OF APPROVAL Planning Division 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. The applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this Use Permit. 4. This Minor Use Permit may be modified or revoked by the Zoning Administrator if determined that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 5. The allowed hours of operation shall be between 7 a.m. and 10 p.m., daily. 6. All net public areas shall remain as designated on the project plans provided for reference and dated June 12, 2009. 7. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require a separate review and may necessitate an amendment to this Minor Use Permit or the processing of a new Use Permit. 8. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher: Between the hours of 7 a.m. and 10 p.m. Between the hours of 10p.m. and 7 a.m. Location Interior Exterior Interior Exterior Residential Property 45dBA 55dBA 40dBA 50dBA Residential Property located within 100 feet of a commercial property 45dBA 60dBA 45dBA 50dBA Mixed Use Property 45dBA 60dBA 45dBA 50dBA Commercial Property N/A 65dBA N/A 60dBA 9. 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 Zoning Administrator Resolution No. ZA2017-065 Page 8 of 10 07-11-17 current business owner, property owner or the leasing agent. 10. No outside paging system shall be utilized in conjunction with this establishment. 11. All trash shall be stored within the building or within dumpsters stored in the trash enclosure (three walls and a self -latching gate) or otherwise screened from view of neighboring properties, except when placed for pick -up by refuse collection agencies. The trash enclosure shall have a decorative solid roof for aesthetic and screening purposes. 12. Trash receptacles for patrons shall be conveniently located both inside and outside of the establishment, however, not located on or within any public property or right-of-way. 13. 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. 14. 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 ne cessary 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). 15. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10 p.m. and 7 a.m. on weekdays and Saturdays and between the hours of 10p.m. and 9 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. 16. 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. 17. A Special Events Permit is required for any event or promo tional 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 specifi ed in the Newport Beach Municipal Code to require such permits. 18. 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. 19. 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 Zoning Administrator Resolution No. ZA2017-065 Page 9 of 10 07-11-17 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 Balboa Lily’s Alcohol Service including, but not limited to, Minor Use Permit No. UP2017-016 (PA2017-124). 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. Police Department 18. All customers must vacate the establishment 30 minutes after closing. 19. The removal or relocation of tables, chairs, stools, or other furniture to accommodate an area for standing or dancing shall be prohibited. 20. The approval is for an eating and drinking establishment with on-sale alcoholic beverage service. The type of alcoholic beverage license issued by the California Board of Alcoholic Beverage Control shall be a Type 41 (On-Sale Beer and Wine – Eating Place) license in conjunction with the restaurant as the principal use of the facility. 21. Approval does not permit the premises to operate as a bar, tavern, cocktail lounge or nightclub as defined by the Newport Beach Municipal Code. 22. No alcoholic beverages shall be consumed on any prop erty adjacent to the licensed premises under the control of the licensee. 23. There shall be no live entertainment or dancing allowed on the premises. 24. No games or contests requiring or involving the consumption of alcoholic beverages shall be allowed. 25. There shall be no reduced price alcoholic beverage promotions after 9 p.m. 26. No off-sale of alcohol shall be permitted beyond what is permitted by the Type 41 ABC license. 27. Food service from the regular menu shall be made available to patrons until closing. 28. 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. Zoning Administrator Resolution No. ZA2017-065 Page 10 of 10 07-11-17 29. 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 which are clearly visible to the exterior shall constitute a violation of this condition. 30. 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. 31. 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. 32. There shall be no on-site radio, television, video, film, or other electronic media broadcasts, including recordings to be broadcasted at a later time, which include the service of alcoholic beverages, without first obtaining an approved Special Event Permit issued by the City of Newport Beach. 33. 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 establish ment 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. 34. Strict adherence to maximum occupancy limits is required. 35. The applicant shall maintain a security recording system with a 30 -day retention and make those recording available to police upon request.