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HomeMy WebLinkAboutPC2020-036 - APPROVING CONDITIONAL USE PERMIT NO. UP2019-035 AND COASTAL DEVELOPMENT PERMIT CD2020-001 TO ALLOW A TYPE 47 (ON SALE GENERAL – EATING PLACE) ABC LICENSE WITHRESOLUTION NO. PC2020-036 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING CONDITIONAL USE PERMIT NO. UP2019-035 AND COASTAL DEVELOPMENT PERMIT CD2020-001 TO ALLOW A TYPE 47 (ON SALE GENERAL – EATING PLACE) ABC LICENSE WITH LIVE ENTERTAINMENT FOR AN EXISTING RESTAURANT AND WAIVE A PORTION OF THE OFF-STREET PARKING REQUIREMENT AT THE PROPERTY LOCATED AT 3107 AND 3109 NEWPORT BOULEVARD (PA2019-160) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Chihuahua Brewing Company LLC (“Applicant”), with respect to property located at 3107 and 3109 Newport Boulevard, and legally described as Parcel 1 of Parcel Map No. 2009-135, as per map filed in Book 371, Pages 4 through 6 of Parcel Maps, in the office of the County Recorder in the County of Orange, California (“Property”) requesting approval of a conditional use permit and coastal development permit. 2. The Applicant seeks a conditional use permit to allow a Type 47 (On Sale General – Eating Place) license with the Department of Alcoholic Beverage Control (“ABC”) for the expansion of a 1,878-square-foot restaurant with an existing 259-square-foot patio into the adjacent commercial suite to include live entertainment. With the expansion, the restaurant is proposed to be 1,446 square feet of net public area and 2,616 square feet of gross floor area with a 626-square-foot patio (“Project”). This expansion requests the parking reduction of 25 parking spaces within the existing shopping center. The proposed hours of operation are from 6:30 a.m. to 10:00 p.m., Sunday through Thursday, and 6:30 a.m. to 11:00 p.m., Friday and Saturday for the interior. The hours of operation for the exterior patio are 6:30 a.m. to 10:00 p.m., daily. Live entertainment is proposed on Tuesdays and Saturdays, between 7:00 p.m. and 9:00 p.m, and Sundays between 11:00 a.m. and 2:00 p.m. No late hours or dancing are proposed as part of this application. 3. The Property is designated CN (Neighborhood Commercial) by the City of Newport Beach General Plan (“General Plan”) Land Use Element and is located within the CN (Commercial Neighborhood) Zoning District. 4. The Property is located within the coastal zone. The Local Coastal Program Coastal Land Use Plan category is CN (Neighborhood Commercial - 0.0 to 3.0 FAR) and it is located within the CN (Commercial Neighborhood) Coastal Zoning District. 5. A telephonic public hearing was held on October 22, 2020 in the City Council Chambers located at 100 Civic Center Drive, Newport Beach, due to the Declaration of a State Emergency and Proclamation of Local Emergency related to COVID-19. A notice of time, place and purpose of the hearing was given in accordance with Government Code Planning Commission Resolution No. PC2020-036 Page 2 of 18 01-25-19 Section 54950 et seq. (“Ralph M. Brown Act”) and Chapters 20.62 and 21.62 (Public Hearings) of the Newport Beach Municipal Code (“NBMC”). Evidence, both written and oral, was presented to, and considered by, the Planning Commission 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) and Section 15303 under Class 3 (New Construction or Conversion of Small Structures) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. 2. The Class 1 (Existing Facilities) 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 Project involves minor alterations to existing structures involving negligible or no expansion of use. 3. The Class 3 (New Construction or Conversion of Small Structures) exemption includes the construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure, including restaurants under 2,500 square feet in floor area. The Project involves an expansion to an existing restaurant (1,878 gross square feet) into an existing adjacent commercial space (738 gross square feet) to create a 2,616-square-foot restaurant. There are no known exceptions listed in CEQA Guidelines Section 15300.2 that would invalidate the use of these exemptions. SECTION 3. REQUIRED FINDINGS. Alcohol Sales In accordance with Section 20.48.030(C)(3) (Alcohol Sales-Required Findings) of the NBMC, 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 NBMC Section 20.48.030 (Alcohol Sales). Facts in Support of Finding: i. The crime rate in the reporting district and adjacent reporting districts as compared to other areas in the City. 1. The Property is located in Reporting District 15 (RD 15). RD 15 exceeds the City average, and is considered a high crime area as compared to other reporting Planning Commission Resolution No. PC2020-036 Page 3 of 18 01-25-19 districts. The RD’s Crime Count is 614, 357 percent over the Citywide crime count average of 140. Since this area has 20 percent greater reported crimes than the average number of reported crimes as determined from all crime reporting districts within the City, the area is found to have undue concentration. However, RD 15 contains a large number of visitor and tourist-serving nonresidential uses. Lido Marina Village, Cannery Village, the Newport Boulevard business corridor, and McFadden Square consist of many eating and drinking establishments that serve residents and visitors to the area. The intent of the zoning designations in this beach area, as well as the two (2) adjacent reporting districts, is to provide various commercial and retail uses to support the surrounding residential area and surrounding visitor-serving and tourist destinations. Beach areas have a higher concentration of land uses and therefore tend to have a higher crime rate than other areas in the City. 2. The Newport Beach Police Department (“NBPD”) has reviewed the proposed use and based on the location, operational characteristics, and closing hour of 11:00 p.m., and has no objection to the addition of the Type 47 alcoholic beverage license subject to appropriate conditions of approval. ii. The numbers of alcohol-related calls for service, crimes, or arrests in the reporting district and in adjacent reporting districts. 1. Due to the high concentration of commercial land uses, the resulting calls for service and number of arrests in RD 15 and adjacent reporting districts are greater than other areas of the City. The highest volume crime in this area is drunkenness and the highest volume arrest in the area is Public Intoxication. Driving under the influence, public intoxication, and liquor law violations make up 32 percent of arrests in this reporting district. However, the area is considered one of the more attractive tourist areas in the City, which results in a higher number of alcohol-related calls for service, crimes and arrests. 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. Although the Project is located near a residential district, the Property is situated in a commercial zoning district within an existing commercial plaza with other nonresidential uses. Residential neighborhoods are located adjacent to the plaza to the north, east, and south. To the west of the plaza, there are existing commercial uses. 2. The Project is not in proximity to a religious facility, daycare center, park, recreational facility, school, or similar uses that attract minors. 3. The proposed alcohol sales are not detrimental to the community as a result of the proximity to any sensitive land uses. Planning Commission Resolution No. PC2020-036 Page 4 of 18 01-25-19 iv. The proximity to other establishments selling alcoholic beverages for either off-site or on- site consumption. 1. Several other establishments along Newport Boulevard currently have active ABC Licenses, most of which are bona fide eating and drinking establishments and are not defined as bars, lounges or nightclubs by the Zoning Code. Within the same shopping center, Chipotle Mexican Grill and Gina’s Pizza provide alcohol service to patrons. Other nearby establishments such as Woody’s Diner, Bear Flag Fish Company, Fable and Spirits, Malarky’s, and Session’s West Coast Deli also provide alcohol service to patrons. 2. The Project’s proximity to other establishments selling alcohol does not raise a concern due to characteristics of the use, which is limited to 1,446 square feet of interior net public area and an outdoor patio space of 626 square feet. The proposed hours of operation are from 6:30 a.m. to 10:00 p.m., Sunday through Thursday, and 6:30 a.m. to 11:00 p.m., Friday and Saturday for the interior. The hours of operation for the exterior patio are 6:30 a.m. to 10:00 p.m., daily. Service of alcohol would begin at 9:00 a.m., daily. Conditions of approval will further prevent the establishment from operating as a bar or lounge. v. Whether or not the proposed amendment will resolve any current objectionable conditions. 1. No objectionable conditions are presently occurring at the Property. The subject shopping center has historically been used by commercial businesses. On May 29, 2020, Chihuahua Cerveza obtained an Emergency Temporary Use Permit to provide outdoor dining for patrons during the COVID-19 pandemic. On one occasion, the restaurant was found to be in violation in social distancing requirements. However, the restaurant amended their permit to relocate their dining area and cooperated with the City to ensure proper distancing would be observed. There is no evidence that suggests the Project will create objectionable conditions with the proposed expansion. 2. The Project has been reviewed and conditioned to ensure that the purpose and intent of Section 20.48.030 (Alcohol Sales) of the NBMC 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 relative to the sale of alcoholic beverages will ensure compatibility with the surrounding uses and minimize any alcohol related impacts. 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. Planning Commission Resolution No. PC2020-036 Page 5 of 18 01-25-19 Conditional Use Permit In accordance with Section 20.52.020(F) (Conditional Use Permits and Minor Use Permits – Findings and Decision) of the NBMC, 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 General Plan land use designation for this site is CN (Neighborhood Commercial), which is intended to provide for a limited range of retail and service uses developed in one or more distinct centers oriented to primarily serve the needs of and maintain compatibility with residential uses in the immediate area. The Project is an expansion of an existing restaurant into an existing adjacent commercial space. 2. The expansion of the existing restaurant is consistent with this designation because it will continue to provide a service to the surrounding neighborhood that will help to maintain a vibrant commercial corridor. As conditioned, the outdoor dining area must close by 10:00 p.m. and the indoor dining area must close by 10:00 p.m. on Sunday through Thursday, and 11:00 p.m. on Friday and Saturday. All patrons must vacate the premises by these designated times. The closing hours will help to ensure the use remains compatible with adjacent residential units and the surrounding neighborhood. 3. The existing adjacent tenant space was previously utilized as a Take-Out Limited food service use. The expansion of Chihuahua Cerveza into the adjacent space would be consistent with the previous use. 4. The 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 in the Zoning Code and Municipal Code. Facts in Support of Finding: 1. The Property is located in the CN (Commercial Neighborhood) Zoning District, which is intended to provide for areas appropriate for a limited range of retail and service uses developed in one or more distinct centers oriented to serve primarily the needs of and maintain compatibility with residential uses in the immediate area. Eating and drinking establishments (including alcohol) are allowed uses, subject to the approval of a use permit. Planning Commission Resolution No. PC2020-036 Page 6 of 18 01-25-19 2. The expansion of the existing restaurant is consistent with this designation because it will continue to provide a service to the surrounding neighborhood that will help to maintain a vibrant commercial corridor. As conditioned, the outdoor dining area must close by 10:00 p.m. and the indoor dining area must close by 10:00 p.m. on Sunday through Thursday, and 11:00 p.m. on Friday and Saturday. All patrons must vacate the premises by these designated times. The closing hours will help to ensure the use remains compatible with adjacent residential units and the surrounding neighborhood. 3. Under NBMC Section 20.40.050 (Parking Requirements for Shopping Centers), the existing shopping center is parked at a rate of one (1) parking space per 200 square feet of gross floor area. This parking rate may be applied when the gross floor area of the shopping center does not exceed 100,000 square feet, and when the gross floor area of all eating and drinking establishments does not exceed fifteen (15) percent of the gross floor area of the shopping center. There is an existing 6,659 square feet of eating and drinking establishments within the shopping center, while the total gross floor area of the shopping center is 47,812 square feet (13.9 percent). Using this parking requirement, the existing shopping center requires 240 parking spaces (47,812 / 200 = 239.06). However, Conditional Use Permit No. UP2010-002 (PA2009-153), which was approved on February 4, 2010, waived five (5) parking spaces with the provision of a parking management plan. Therefore, the existing shopping center requires 235 parking spaces. There are 236 parking spaces that exist on-site, resulting in a surplus of one (1) space. 4. The Project causes the overall gross floor area of eating and drinking establishments to exceed fifteen (15) percent of the overall gross floor area of the shopping center. Per NBMC Section 20.40.050, shopping centers occupying more than fifteen (15) percent of the gross floor area of the center shall use a parking requirement equal to the sum of the requirements prescribed for each use in the shopping center. Under existing conditions, Chihuahua Cerveza and the adjacent take-out limited food service use requires 14 parking spaces, at a rate of one (1) space per 200 gross square feet (2,616 / 200 = 13.08). With the proposed expansion, Chihuahua Cerveza requires 37 parking spaces, at a parking rate of one (1) space per 40 square feet of net public area (1,446 / 40 = 36.15). There are a variety of existing uses within the shopping center, which include eating and drinking establishments, take-out dining, retail stores, a grocery store, a nail salon, and a bank. Parking requirements calculated for each individual use results in a parking requirement of 261 parking spaces, resulting in a deficit of 25 parking spaces (261 – 236 = 25). 5. A parking study from October 5, 2020 has been provided by RK Engineering Group, Inc (the “Parking Study”). The Parking Study establishes a parking demand for the expansion of Chihuahua Cerveza by providing parking counts during typical off- season operations and weather conditions on a Thursday, Friday, and Saturday. The observed peak parking demand occurred on Friday, May 17, 2019, where approximately 135 parking spaces out of 236 were occupied (57 percent utilization). With the expansion of the restaurant, the parking study concludes that the peak parking demand would be approximately 156 spaces out of 236 provided (66 percent Planning Commission Resolution No. PC2020-036 Page 7 of 18 01-25-19 utilization). During the summer, parking on the Balboa Peninsula is heavily impacted with beach visitors. However, the shopping center actively enforces a “no beach parking” policy and regularly tows violators from the parking lot, which mitigates the impacts during peak seasons. The Project is located close to the beach, which typically generates higher volumes of patrons who travel to the shopping center by means of rideshare, walking or bicycling. The Parking Study concludes that even with the Project’s increase of parking demand, the existing parking lot is able to accommodate the proposed expansion of the restaurant. 6. The Parking Study concludes that on-site parking provided in the shopping center is adequate to accommodate the proposed project. However, in compliance with NBMC Subsection 20.40.110(C), a parking management plan has been prepared in case the site’s parking supply needs to be better utilized. The plan includes future considerations for providing a dedicated rideshare pick up and drop off area, setting parking duration limits and enforcement through a parking patrol service, providing secure bicycle parking, and encouraging employees to park away from entrances to restaurants and shops. If necessary, the shopping center will provide a valet service during days and hours of high parking demand. 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. Commercial uses such as restaurants are common in the vicinity of Newport Boulevard and serve visitors and residents. As conditioned, the Project will be compatible with the land uses permitted within the surrounding neighborhood. 2. The Project is an existing restaurant located within an existing shopping center and will complement the existing mix of retail, service, and restaurant uses in the immediate area. The adjacent commercial space that the restaurant will expand into was previously a take-out service, limited, food service establishment. 3. The Project includes conditions of approval to ensure that potential conflicts are minimized to the greatest extent possible. Although the restaurant is nearby residential units, the building is oriented toward 32nd Street. There are residential units located north of 32nd Street, but the outdoor dining area will be buffered by the shopping center parking lot and the street. 4. A noise study was prepared by RK Engineering Group, Inc. on September 27, 2019 (the “Noise Study”), during a trial period of live entertainment. The Noise Study monitored noise levels from the live music that was performed at the Property. The Noise Study concluded that the live entertainment did not result in significant changes to the ambient noise environment at the Project or surrounding residential Planning Commission Resolution No. PC2020-036 Page 8 of 18 01-25-19 uses, as there was no perceptible change in the ambient noise environment and did not cause a noise violation per the standards set in the NBMC. 5. As conditioned, the outdoor dining area will close by 10:00 p.m., daily, and the interior of the restaurant will close by 10:00 p.m. on Sunday through Thursday and 11:00 p.m. on Friday and Saturday. The closing hours will help to ensure there is no detriment to the adjacent residential neighborhood. 6. The NBPD has reviewed the Project and has no objections. The operational conditions of approval recommended by the NBPD 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. 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 Project is located within an existing shopping center. The adjacent commercial space, which was previously a take-out service, limited, food use, will be utilized for additional seating area, office space, and storage. The design, size, location, and operating characteristics of the use are compatible with the surrounding neighborhood. 2. The existing kitchen, food prep area, restrooms, and storage areas will remain in the existing restaurant and will be unaffected by the expansion. However, the Applicant is required to obtain Orange County Health Department approval prior to opening for business, and comply with the California Building Code to ensure the safety and welfare of customers and employees within the establishment. 3. Adequate public and emergency vehicle access, public services, and utilities are provided to the subject property. Any additional utilities upgrades required for the change in occupancy will be required at plan check for the building permit. 4. The tenant improvements to the Property will comply with all Building, Public Works, and Fire Codes. All City ordinances and all conditions of approval will be complied with. Finding: 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. Planning Commission Resolution No. PC2020-036 Page 9 of 18 01-25-19 Facts in Support of Finding: 1. The Project includes conditions of approval to ensure that potential conflicts are minimized to the greatest extent possible. Although the restaurant is nearby to residential units, the building is oriented toward 32nd Street. There are residential units located north of 32nd Street, but the outdoor dining area will be buffered by the shopping center parking lot and the street. 2. The Noise Study monitored noise levels from the live music that was performed at the Property. The Noise Study concluded that the live entertainment did not result in significant changes to the ambient noise environment at the Project or surrounding residential uses, as there was no perceptible change in the ambient noise environment and did not cause a noise violation per the standards set in the NBMC. 3. As conditioned, the outdoor dining area will close by 10:00 p.m., daily, and the interior of the restaurant will close by 10:00 p.m. on Sunday through Thursday and 11:00 p.m. on Friday and Saturday. The closing hours will help to ensure there is no detriment to the adjacent residential neighborhood. 4. The NBPD has reviewed the Project and has no objections. The operational conditions of approval recommended by the NBPD 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. 5. 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. 6. The Type 47 (On Sale General – Eating Place) ABC License will provide dining services as a public convenience to the surrounding residential neighborhood as well as to visitors. The service of alcohol will complement the principal use of the facility as a restaurant and provide an economic opportunity for the property owner to maintain a successful business in a way that best serves the community. 7. 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. Off-Street Parking Reduction In accordance with Section 20.40.110 (Adjustments to Off-Street Parking Requirements) of the NBMC, off-street parking requirements may be reduced with the approval of a conditional use Planning Commission Resolution No. PC2020-036 Page 10 of 18 01-25-19 permit in compliance with NBMC Section 20.52.020 (Conditional Use Permits and Minor Use Permits) as follows: Finding: G. The applicant has provided sufficient data, including a parking study if required by the Director, to indicate that parking demand will be less than the required number of spaces or that other parking is available (e.g., City parking lot located nearby, on-street parking available, greater than normal walk in trade, mixed-use development); Facts in Support of Finding: 1. The Project causes the overall gross floor area of eating and drinking establishments to exceed fifteen (15) percent of the overall gross floor area of the shopping center. Per NBMC Section 20.40.050, shopping centers occupying more than fifteen (15) percent of the gross floor area of the center shall use a parking requirement equal to the sum of the requirements prescribed for each use in the shopping center. Under existing conditions, Chihuahua Cerveza and the adjacent Take-Out Limited Food Service use requires 14 parking spaces, at a rate of one (1) space per 200 gross square feet (2,616 / 200 = 13.08). With the proposed expansion, Chihuahua Cerveza requires 37 parking spaces, at a parking rate of one (1) space per 40 square feet of net public area (1,446 / 40 = 36.15). There are a variety of existing uses within the shopping center, which include eating and drinking establishments, take-out dining, retail stores, a grocery store, a nail salon, and a bank. Parking requirements calculated for each individual use results in a parking requirement of 261 parking spaces, resulting in a deficit of 25 parking spaces (261 – 236 = 25). 2. The Parking Study establishes a parking demand for the expansion of Chihuahua Cerveza by providing parking counts during typical off-season operations and weather conditions on a Thursday, Friday, and Saturday. The observed peak parking demand occurred on Friday, May 17, 2019, where approximately 135 parking spaces out of 236 were occupied (57 percent occupancy). With the expansion of the restaurant, the parking study concludes that the peak parking demand would be approximately 156 spaces out of 236 provided (66 percent utilization). During the summer, parking on the Balboa Peninsula is heavily impacted with beach visitors. However, the shopping center actively enforces a “no beach parking” policy and regularly tows violators from the parking lot, which mitigates the impacts during peak seasons. The Project is located close to the beach, which typically generates higher volumes of patrons who travel to the shopping center by means of rideshare, walking or bicycling. The Parking Study concludes that even with the Project’s increase of parking demand, the existing parking lot is able to accommodate the proposed expansion of the restaurant. Finding: H. A parking management plan shall be prepared in compliance with subsection (C) of this section (Parking Management Plan). Planning Commission Resolution No. PC2020-036 Page 11 of 18 01-25-19 Fact in Support of Finding: 1. The Parking Study concludes that on-site parking provided in the shopping center is adequate to accommodate the proposed project. However, in compliance with NBMC Subsection 20.40.110(C), a parking management plan has been prepared in case the site’s parking supply needs to be better utilized. The plan includes future considerations for providing a dedicated rideshare pick up and drop off area, setting parking duration limits and enforcement through a parking patrol service, providing secure bicycle parking, and encouraging employees to park away from entrances to restaurants and shops. If necessary, the shopping center will provide a valet service during days and hours of high parking demand. Coastal Development Permit The Conditional Use Permit is consistent with the legislative intent of Title 21 (Local Coastal Program Implementation Plan) of the NBMC and the Planning Commission approves the Coastal Development Permit based on the following findings per Section 21.52.015.F (Coastal Development Permits – Findings and Decision) of the NBMC: Finding: I. That the proposed use conforms to all applicable sections of the certified Local Coastal Program. Facts in Support of Finding: 1. The Conditional Use Permit is for the expansion of an existing restaurant into an existing adjacent commercial suite. 2. Pursuant to Section 21.20.020 (Commercial Coastal Zoning Districts Land Uses, Table 21.20-1) of the Implementation Plan, eating and drinking establishments located in the CV Coastal Zoning District that are classified as Food Service, No Late Hours, are allowed uses, subject to the approval of a use permit. 3. The Project causes the overall gross floor area of eating and drinking establishments to exceed fifteen (15) percent of the overall gross floor area of the shopping center. Per NBMC Section 20.40.050, shopping centers occupying more than fifteen (15) percent of the gross floor area of the center shall use a parking requirement equal to the sum of the requirements prescribed for each use in the shopping center. Under existing conditions, Chihuahua Cerveza and the adjacent Take-Out Limited Food Service use requires 14 parking spaces, at a rate of one (1) space per 200 gross square feet (2,616 / 200 = 13.08). With the proposed expansion, Chihuahua Cerveza requires 36 parking spaces, at a parking rate of one (1) space per 40 square feet of net public area (1,432 / 40 = 35.8). There are a variety of existing uses within the shopping center, which include eating and drinking establishments, take-out dining, retail stores, a grocery store, a nail salon, and a bank. Parking requirements Planning Commission Resolution No. PC2020-036 Page 12 of 18 01-25-19 calculated for each individual use results in a parking requirement of 261 parking spaces, resulting in a deficit of 25 parking spaces (261 – 236 = 25). 4. The Parking Study establishes a parking demand for the expansion of Chihuahua Cerveza by providing parking counts during typical off-season operations and weather conditions on a Thursday, Friday, and Saturday. The observed peak parking demand occurred on Friday, May 17, 2019, where approximately 135 parking spaces out of 236 were occupied (57 percent occupancy). During the summer, parking on the Balboa Peninsula is heavily impacted with beach visitors. However, the shopping center actively enforces a “no beach parking” policy and regularly tows violators from the parking lot, which mitigates the impacts during peak seasons. The Project is located close to the beach, which typically generates higher volumes of patrons who travel to the shopping center by means of rideshare, walking or bicycling. The Parking Study concludes that even with the Project’s increase of parking demand, the existing parking lot is able to accommodate the proposed expansion of the restaurant. 5. The Project is an expansion of an existing restaurant into a small adjacent commercial suite that was previously occupied by a take-out limited food service use. The restaurant, along with the entire shopping center, provides visitor-serving uses that serve beach visitors along the area. Since the existing parking lot is sufficient for the observed parking demand, the restaurant expansion is not expected to impact public parking for beach visitors. 6. The Conditional Use Permit is for a property within a developed shopping center that is approximately 475 feet from the harbor and is not near any natural landforms or environmentally sensitive areas. 7. The Property is located approximately 150 feet south from a public beach access location identified by the Coastal Land Use Plan. However, the Project is located within an existing shopping center and is to expand into an existing commercial suite. There are no impacts to public access to the beach. Finding: J. Conforms with the public access and public recreation policies of Chapter 3 of the Coastal Act if the project is between the nearest public road and the sea or shoreline of any body of water located within the coastal zone. Fact in Support of Finding: 1. The Property is not located between the nearest public road and the sea or shoreline of any body of water located within the coastal zone. The Property is located approximately 475 feet from a public beach or harbor (approximately 1,000 feet) and is not located near a public viewpoint designated by the Coastal Land Use Plan. SECTION 4 . DECISION . NOW, THEREFORE, BE IT RESOLVED: Planning Commission Resolution No. PC2020-036 Page 13 of 18 1. The Planning Commission of the City of Newport Beach hereby finds this Project is categorically exempt from the California Environmental Quality Act pursuant to Section 15301 under Class 1 (Existing Facilities) and Section 15303 under Class 3 (New Construction or Conversion of Small Structures) of the CEQA Guidelines, California Code of Regulations , Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. 2 . The Planning Commission of the City of Newport Beach hereby approves Conditional Use Permit No . UP2019-035 and Coastal Development Permit No. CD2020-001, subject to the conditions set forth in Exhibit "A," which is attached hereto and incorporated by reference. 3 . This action shall become final and effective fourteen (14) days following the date this Resolution was adopted unless within such time an appeal is filed with the City Clerk in accordance with the provisions of NBMC Title 20 (Planning and Zoning) and NBMC Title 21 (Local Coastal Program). 4 . This resolution supersedes City Council Resolution No. 2011-27, which upon vesting of the rights authorized by this Conditional Use Permit, shall become null and void. PASSED, APPROVED, AND ADOPTED THIS 22ND DAY OF OCTOBER, 2020. AYES : NOES : Klaustermeier, Kleiman, Lowrey, Rosene, and Weigand Ellmore and Koetting ABSTAIN: ABSENT: BY: ft~;Jl Erik Weigand, Chairman Lauren Kleiman, Secretary 01-25-19 Planning Commission Resolution No. PC2020-036 Page 14 of 18 01-25-19 EXHIBIT “A” CONDITIONS OF APPROVAL (Project-specific conditions are in italics) 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 approval. 4. Conditional Use Permit No. UP2019-035 and Coastal Development Permit No. 2020-001 shall expire unless exercised within 24 months from the date of approval as specified in Section 20.54 of the Newport Beach Municipal Code, unless an extension is otherwise granted. 5. This Use Permit and Coastal Development 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. 8. Prior to the issuance of a building permit, the Applicant shall pay any unpaid administrative costs associated with the processing of this application to the Planning Division. 9. The interior net public area shall be limited to 1,446 square feet. 10. The exterior patio shall be limited to 626 square feet. 11. The bar counter shall have a maximum of 15 seats. Planning Commission Resolution No. PC2020-036 Page 15 of 18 01-25-19 12. The restaurant, including but not limited to all dining areas, bar area, and outdoor patio, shall have a maximum of 114 seats. 13. The hours of operation shall be 6:30 a.m. to 10:00 p.m., Sunday through Thursday, and 6:30 a.m. to 11:00 p.m., Friday and Saturday for the interior. The hours of operation for the exterior patio shall be 6:30 a.m. to 10:00 p.m., daily. 14. Alcohol shall not be served before 9:00 a.m. 15. 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 7:00AM and 10:00PM Between the hours of 10:00PM and 7:00AM 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 16. Live entertainment shall be limited to the hours of 7:00 p.m. to 9:00 p.m. on Tuesdays and Saturdays, and 11:00 a.m. to 2:00 p.m. on Sundays. Additional live entertainment may be permitted during holidays, including Cinco de Mayo, with the approval of the Community Development Director. 17. There shall be a maximum of two (2) performers at any given time. 18. All live entertainment performances shall be acoustic only and shall not be amplified in any form. There shall be no DJ present at any time. 19. There shall be no dancing. 20. There shall be no stage constructed. Performances shall not block exits or exit paths of travel. 21. Live entertainment shall be limited to the interior of the restaurant only. No performances shall occur outside of the restaurant, including the outdoor dining area. 22. All windows and doors shall remain closed during performances. 23. 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. Planning Commission Resolution No. PC2020-036 Page 16 of 18 01-25-19 24. Construction activities shall comply with Section 10.28.040 of the Newport Beach Municipal Code, which restricts hours of noise-generating construction activities that produce noise to between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday. Noise-generating construction activities are not allowed on Saturdays, Sundays or Holidays. 25. No outside paging system shall be utilized in conjunction with this establishment. 26. 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. 27. 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. 28. 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. 29. 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). 30. 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. 31. 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. 32. 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 Newport Beach Municipal Code to require such permits. 33. The compliance with this Conditional Use Permit and Coastal Development Permit shall be reviewed by the Planning Commission one year from the date the final certificate of occupancy is issued for the eating and drinking establishment. Planning Commission Resolution No. PC2020-036 Page 17 of 18 01-25-19 34. 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 Chihuahua Cerveza Expansion including, but not limited to, Coastal Development Permit No. CD2020-001 and Conditional Use Permit No. UP2019-035 (PA2019-160). 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 35. 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. Police Department 36. The Project 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 Type 47 (On-Sale General – Eating Place). 37. 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 is a violation and may be cause for revocation of the Use permit. 38. 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 every 60 days of hire. This training must be updated every three years regardless of certificate expiration date. The certified program must meet the standards of the certifying/licensing body designated by the State of California. The establishment shall comply with the requirements of this section within 60 days of approval. 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. 39. The quarterly gross sales of on-sale alcoholic beverages shall not exceed the gross sales of food during the same period. The licensee shall at all times maintain records, which Planning Commission Resolution No. PC2020-036 Page 18 of 18 01-25-19 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 NBPD on demand. 40. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee. 41. The full menu food service shall be available for ordering at all times that the restaurant establishment is open for business. 42. There shall be no exterior advertising or signs of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages. Interior displays of alcoholic beverages or signs that are clearly visible to the exterior shall constitute a violation of this condition. 43. There shall be no reduced-price alcoholic beverage promotions after 9:00 p.m. 44. No games or contest requiring or involving the consumption of alcoholic beverages shall be allowed. 45. Strict adherence to maximum occupancy limits is required. 46. “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). 47. The Applicant shall maintain a security recording system with a 30-day retention and make those recordings available to police upon request. 48. An Operator License is required pursuant to Chapter 5.25 of the Municipal Code, and may be subject to additional and/or more restrictive conditions such as a security plan to regulate and control potential late hour nuisances associated with the operation of the establishment.