HomeMy WebLinkAboutPC2018-002 - MUP TO SUPERCEDE UP3535 AND APPROVE A FOOD SERIVCE, EATING AND DRINKING ESTABLISHMENT WITHOUT LATE HOURS AND A TYPE 41 (ON-SALE BEER AND WINE) ALCOHOLIC BEVERAGE LICENSE - 2200 WEST OCEANFRONTN. *Tel X F1901', IT I -►kN1 r*X: 1*af
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING
MINOR USE PERMIT NO. UP2017-013, AND SUPERSEDING
UP3535, FOR A FOOD SERVICE, EATING AND DRINKING
ESTABLISHMENT WITHOUT LATE HOURS AND A TYPE 41
(ON -SALE BEER AND WINE) ALCOHOLIC BEVERAGE
CONTROL LICENSE LOCATED AT 2200 WEST OCEANFRONT
(PA2017-096)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
An application was filed by Urban Cup ("Applicant"), with respect to property located at
2200 West Oceanfront, and legally described as Lot 1 in Block 22 of Newport Beach, in
the City of Newport Beach, County of Orange, State of California, as per map recorded in
Book 3, Page 26 of Miscellaneous Maps, in the Office of the County Recorder of said
county, ("Property"), requesting approval of a minor use permit.
2. Applicant proposes a minor use permit for the addition of a Type 41 (On -Sale Beer and
Wine) Alcoholic Beverage Control (ABC) license to an existing food service, eating and
drinking establishment use. The existing food service, eating and drinking establishment
use, allowed by UP3535 includes 450 square feet of net public area and 32 seats. Hours
of operation are 7 a.m. to 11 p.m., daily. There are no late hours (after 11 p.m.)
proposed. If approved, this minor use permit would supersede UP3535.
3. The Property is located within the Mixed -Use Water Related ("MU -W2") Zoning District
and the General Plan Land Use Element category is Mixed -Use Water Related ("MU -
W2").
4. The subject Property is located within the Coastal Zone. The Coastal Land Use category
is Mixed Use Water Related ("MU -W") and it is located within the Mixed Use Water
Related ("MU -W2") Coastal Zoning District. The project is exempt from coastal
development permitting requirements because the project does not intensify or expand
the existing eating and drinking establishment use.
5. The Newport Beach Municipal Code ("NBMC") allows for Minor Use Permits to be
approved at the administrative level; however, because this application relates to alcohol
sales, the Director is forwarding this application to the Planning Commission for review.
6. A public hearing was held on January 18, 2018 in the City Hall Council Chambers
located at 100 Civic Center Drive, Newport Beach, California. 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 Planning Commission at
this hearing.
Planning Commission Resolution No. PC2018-002
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. Class 1 (Existing Facilities) exemption includes the operation, repair, maintenance,
permitting, leasing, licensing, or minor alteration of public or private structure, facilities,
mechanical equipment, or topographical features, involving negligible or no expansion
of use. The proposed project involves no alteration of an existing commercial building.
SECTION 3. REQUIRED FINDINGS.
In accordance with NBMC Subsection 20.48.030(C)(3) (Alcohol Sales), the following findings
and facts in support of the findings for a use permit are set forth:
A. The use is consistent with the purpose and intent of Section 20.48.030 (Alcohol Sales).
Facts in Support of Finding
In finding that the proposed use is consistent with NBMC Section 20.48.030, 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.
The subject property is located in Reporting District 15 (RD 15). 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 24 was 288 crimes reported in 2016, which is higher
than adjacent reporting districts RD 12, RD 13, and RD 16. The Part One Crime rate in
RD 15 is higher than the citywide average. This is largely due to the number of visitors
to the Balboa Peninsula, the higher concentration of restaurants, visitor -serving uses,
and the high ratio of nonresidential to residential uses in RD 15. The service of
alcoholic beverages at the subject property would provide additional menu options for
customers and would enhance the economic viability of the business.
2. With the included operating conditions of approval, including a closing hour of 11 p.m.,
the addition of a Type 41 ABC license is not likely to increase the crime rate of RD 15.
ii. The number of alcohol-related calls for service, crimes, or arrests in the reporting district
and in adjacent reporting districts.
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1. The total number of alcohol-related calls for service, crimes, or arrests in RD 15 is
higher than adjacent reporting districts RD 12, RD 13, and RD 16. This is largely due
to the number of visitors to the Balboa Peninsula, the higher concentration of
restaurants and visitor -serving uses and the high ratio of nonresidential to residential
uses. The addition of a Type 41 ABC license with conditions of approval is not likely
to increase the number of alcohol-related calls for service, crimes, or arrests in the
area.
2. There were 192 calls for service to the subject property; however, they may not have
all been related to the existing food service, eating and drinking establishment with
some likely attributed to its location on the Ocean Front boardwalk.
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.
1. The subject property is located in a mixed-use district which allows for residential uses
when intermixed with nonresidential uses. The nearest residential district is located
approximately 325 feet northwest of the project site. The nearest residential units are
located adjacent to the property to the north. The nearest recreational facility is the
beach, is located adjacent to the property and the Newport Pier, located approximately
450 feet southwest. The nearest church, Our Lady of Mount Carmel Church, is located
approximately 0.5 miles to the east along West Balboa Boulevard. The nearest school,
Newport Elementary School, is located approximately 0.7 miles to the east of the
subject property, along West Balboa Boulevard.
2. 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 and eating and drinking establishments with alcohol service are common. The
proposed ABC license, in conjunction with the early closing hour, is not anticipated to
alter the operational characteristics of the use such that it becomes detrimental to the
area. Conditions of approval are included to further minimize potential negative
impacts to the surrounding land uses and ensure that the use remains compatible with
the surrounding community.
3. 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 receive ABC -required Licensee Education on Alcohol and Drugs (LEAD) or
Responsible Beverage Service (RBS) training.
iv. The proximity to other establishments selling alcoholic beverages for either off-site or on-
site consumption.
1. The location of the proposed establishment is in close proximity to several
establishments with alcohol licenses on the Balboa Peninsula, including the Stag Bar,
21 Oceanfront Restaurant, The Blue Beet, Mutt Lynch's, Blackie's by the Sea, and
Dory Deli, among others. The RD 15 statistics indicate an over concentration of
alcohol licenses within this statistical area.
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2. The per capita ratio of license for every 69 residents is higher than the adjacent
districts and the average ratio for Orange County. This is due to the higher
concentration of commercial land uses, lower number of residential properties, and
high number of restaurants in McFadden Square, Cannery Village, and Lido Marina
Village. While the license -to -resident ratio is higher than average and the proposed
restaurant is located in close proximity to other establishments, the location of the new
ABC license in an established commercial area, together with the proposed
operational characteristics would make the sale of alcoholic beverages acceptable.
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 proposed use has been reviewed and conditioned to help ensure that the purpose
and intent of NBMC Section 20.48.030 (Alcohol Sales) is maintained and that a
healthy environment for businesses is preserved. The service of alcohol is intended for
the convenience of customers living in and visiting the area. 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.
In accordance with NBMC Subsection 20.52.020(F) (Conditional Use Permits and Minor Use
Permits), the following findings and facts in support of the findings for a use permit are set
forth:
B. The use is consistent with the General Plan and any applicable specific plan,
Facts in Support of Finding
The subject property has a General Plan land use designation of Mixed Use Water
Related ("MU -W2") within the General Plan. The MU -W2 designation applies to waterfront
properties in which marine -related uses may be intermixed with general commercial,
visitor -serving commercial and residential dwelling units on upper floors. The food service,
eating and drinking establishment with alcohol service and no late hours is consistent with
this designation. Eating and drinking establishments can be expected to be found in this
area and similar locations and are complementary to the surrounding commercial and
residential uses.
2. The proposed use is consistent with General Plan Land Use Policy LU6.8.2 (Component
Districts) which emphasizes that McFadden Square should be utilized as one of the primary
activity centers on the Balboa Peninsula. The use of a food service, eating and drinking
establishment in a location previously occupied by a food service, eating and drinking
establishment for over 24 years will continue to serve residents and visitors to the area
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3. Eating and drinking establishments are common in the vicinity along the Balboa Peninsula
and are frequented by visitors and residents. The establishment is compatible with the
land uses permitted within the surrounding neighborhood.
4. The subject property is not part of a specific plan area.
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;
Fact in Support of Finding
1. The Property is located in the Mixed -Use Water Related ("MU -W2") Zoning District. A food
service, eating and drinking establishment with alcohol service and no late hours is
permitted in this zoning district with approval of a minor use permit.
2. A restaurant has been operating at the subject property since prior to 1994. The proposed
alcohol service will expand the menu options for customers, does not intensify the use of
the property and would enhance the economic viability of the business.
3. The subject property does not provide on-site parking; however, addition of an ABC
license does not require additional parking and the property will remain legal,
nonconforming.
4. The McFadden Square area, served by the two adjacent municipal lots and the close
proximity to multiple commercial uses and beach and coastal recreation. areas, will result
in shared trips to the eating and drinking establishment.
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 Property is abutting residential uses to the north, commercial uses to the south and
east, and recreational uses to the west. There is no live entertainment or dance floor. The
operational conditions of approval recommended by the Police Department, relative to the
sale of alcoholic beverages, will help ensure compatibility' with the surrounding uses and
minimize alcohol-related impacts. The project has been conditioned to ensure the welfare
of the surrounding community.
2. The hours of operation of the food service, eating and drinking establishment are limited
to 7 a.m. to 11 p.m., daily. The hours are compatible with other eating and drinking
establishments in the area.
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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; and
Facts in Support of Finding
1. The subject Property is developed with the existing food service, eating and drinking
establishment. There is adequate public and emergency vehicle access, public services,
and utilities, which are existing on the site.
F. Operation of the use at the location proposed would not be detrimental to the harmonious
and orderly growth of the City, or 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 existing food service, eating and drinking establishment has been in operation since
prior to 1994. The use has not proven detrimental to the area, and has demonstrated that it
is compatible with the neighboring residential uses.
2. The operational conditions of approval recommended by the Newport Beach Police
Department relative to the sale of alcoholic beverages will ensure compatibility with the
surrounding uses and minimize any impacts to the surrounding area, which are related to
the sale of alcohol.
3. All employees serving alcohol will be required to be at least 21 years of age, and undergo,
and successfully complete, Responsible Beverage Service (RBS) training. Additional
conditions of approval are included in the draft resolution, which will ensure that potential
conflicts with the surrounding residential land uses are minimized to the greatest extent
possible.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Planning Commission of the City of Newport Beach hereby approves Minor Use
Permit No. UP2017-013, 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 a Type 41 (On -Sale Beer and Wine) Alcoholic
Beverage Control (ABC) license with no late hours located at 2200 West Oceanfront.
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2. This resolution supersedes Use Permit No. UP3535 as approved by the Planning
Commission, which upon vesting of the rights authorized by this use permit, shall
become null and void.
3. This action shall become final and effective fourteen (14) days after the adoption of
this Resolution unless within such time an appeal or call for review is filed with the City
Clerk in accordance with the provisions of NBMC Title 20 Planning and Zoning.
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PASSED, APPROVED AND ADOPTED THIS 18TH DAY OF JANUARY, 2018.
AYES: Kleiman, Koetting, Lowrey, Weigand, Zak
NOES: Dunlap
F.111 1.1 .11 F."I 1210 ON iTa
ABSENT: Kramer
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EXHIBIT "A"
CONDITIONS OF APPROVAL
Project Specific Conditions in Italics
PLANNING DIVISION
1 The project is subject to all applicable City ordinances, policies, and standards, unless
specifically waived or modified by the conditions of approval.
2. 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).
3. Minor Use Permit No. UP2017-013 shall expire if not exercised within 24 months from
the date of approval as specified in NBMC Section 20.54.060 (Time Limits and
Extensions), unless an extension is otherwise granted.
4. This Minor 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.
5. Any change in operational characteristics, hours of operation, 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.
6. 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 Minor Use
Permit.
7.- All exits shall remain free of obstructions and available for ingress and egress at all
times.
8. 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.
9. Should this business be sold or otherwise come under different ownership, any future
owners or assignees shall be notified in writing of the conditions of this approval by the
current owner or leasing company.
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10. A copy of Resolution No. PC2018-002, 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.
11. Prior to the issuance of building permits, Applicant shall submit to the Planning Division
an additional copy of the approval architectural plans for inclusion in the Conditional Use
Permit file. The plans shall be identical to those approved by all City departments for
building permit issuance. The approved copy shall include architectural sheets, only, and
shall be reduced to size 11 inches by 17 inches. The plans shall accurately depict the
elements approved by this Minor Use Permit and shall highlight the approved elements
such that they are readily discernible from other elements of the plans.
12. The hours of operation shall be limited to 7 a.m. to 10 p.m., daily, Memorial Day
through Labor Day, and 7 a.m. to 9 p.m., daily, the day after Labor Day through the
day before Memorial Day. If the Planning Commission finds the establishment is
operating without detriment to the surrounding community after a one-year review
following implementation of this Use Permit, the Community Development Director
may extend the closing hour up to 19 p.m..
13. The "net public area" shall not exceed 450 square feet for the interior of the subject
restaurant facility.
14. There shall be no dancing allowed on the premises.
15. Live entertainment shall not be permitted unless an amendment to this use permit is
approved and the operator has obtained a live entertainment permit from the Revenue
Division.
16. All proposed signs shall be in conformance with any approved Comprehensive Sign
Program for the project site and provisions of NBMC Chapter 20.42.
17. No temporary "sandwich" signs shall be permitted, either on-site or off-site, to advertise
the restaurant facility. Temporary signs shall be prohibited in the public right-of-way
unless otherwise approved by the Public Works Department in conjunction with the
issuance of an encroachment permit or encroachment agreement.
18. 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.
19. Trash receptacles for patrons shall be conveniently located inside of the establishment.
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.
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20. Storage outside of the building, in the front or at the rear of the Property, shall be
prohibited, with the exception of the trash container on pick-up days.
21. 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 Urban Cup Minor Use Permit including, but not limited
to, Minor Use Permit No. UP2017-013 (PA2017-096). 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. 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. 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
22. All customers must vacate the establishment 30 minutes after closing.
23. The eating and drinking establishment shall close at 11 p.m., daily.
24. 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 for Bona Fide
Public Eating Place) license, in conjunction with the restaurant as the principal use of the
restaurant facility.
25. All owners, managers, and employees must abide by all requirements and conditions of
the Alcoholic Beverage License.
26. Approval does not permit the premises to operate as a bar, tavern, cocktail lounge or
nightclub as defined by the NBMC.
27. No alcoholic beverages shall be consumed on any property adjacent to the licensed
premises under the control of the licensee.
28. No games or contests requiring or involving the consumption of alcoholic beverages shall
be allowed.
29. There shall be no reduced price alcoholic beverage promotions after 9 p.m.
30. No off -sales of alcohol shall be permitted.
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31. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food
during the sale 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.
32. 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.
33. "VIP" passes or other passes to enter the establishment, as well as door charges, cover
charges, or any other form of admission charge, including minimum drink order of the
sale of drinks is prohibited (excluding charges for prix fixe meals).
34. Any event or activity staged by an outside promotor or entity, where Applicant, operator,
owner or his employees or representatives share in any profits, or pay any percentage or
commission to a promotor or any other person based upon money collected as a door
charge, cover charge or any other dorm of admission charge is prohibited.
35. A Special Events Permit is required for any event or promotional activity outside the
normal operational characteristics of the approved use, as conditioned, to that would
attract large crowds, involve the sale of alcoholic beverages, include any form of on-site
media broadcast, or any other activities as specified in the Newport Beach Municipal
Code to require such permits.
36. 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.
37. Strict adherence to maximum occupancy limits is required.
38. 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 NBMC.
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