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HomeMy WebLinkAbout20210513_ZA_Resolution_ZA2021-025Community Development Department CITY OF NEWPORT BEACH 100 Civic Center Drive Newport Beach, California 92660 949 644-3200 newportbeachca.gov/communitydevelopment VIA EMAIL May 13, 2021 Brett Gray 8826 Santa Fe Drive, Suite 304 Overland Park, KS 66212 bgray@ddg.bz Subject: Lot Merger No. LM2021-002 / Staff Approval No. SA2021-001 (PA2021-009) 3040 and 3050 East Coast Highway Chipotle Mexican Grill Lot Merger and Staff Approval Dear Mr. Gray, It was a pleasure working with you on the above referenced application. Please be advised that the subject application was approved by the Zoning Administrator on May 13, 2021 and effective on May 31, 2021. A copy of the approved resolution with findings and conditions is attached. If you have any questions, please do not hesitate to contact me directly. Thank you and I look forward to working with you again in the future. Sincerely, RESOLUTION NO. ZA2021-025 A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH, APPROVING LOT MERGER LM2021-002 AND STAFF APPROVAL SA2021-001 FOR A TENANT IMPROVEMENT OF THE EXISTING RESTAURANT LOCATED AT 3040 AND 3050 EAST COAST HIGHWAY (PA2021- 009) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Chipotle Mexican Grill, with respect to properties located at 3040 and 3050 East Coast Highway and legally described as Lot 5 together with Lot 6 of Block P of Tract No. 323 as filed in book 14, pages 40 and 41 of Miscellaneous Maps, in the County of Orange recorder’s office. 2. The applicant proposes a lot merger and staff approval for a tenant improvement of the existing restaurant space. The tenant improvements include entry modifications, an interior and exterior façade remodel, new pick-up window, patio updates, and Americans with Disabilities Act of 1990 (ADA) parking and access enhancements. The lot merger would combine two (2) lots into a single parcel as a single building site. 3. The subject properties are designated Corridor Commercial (CC) by the General Plan Land Use Element and is located within the Commercial Corridor (CC) Zoning District. 4. The subject property is not located within the coastal zone. 5. A public hearing was held online on May 13, 2021, observing restrictions 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 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) and Section 15315, under Class 15 (Minor Land Divisions) 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 exemption allows improvements to existing private structures including interior or exterior alterations involving things such as interior partitions, plumbing, and electrical conveyances. The proposed site and building improvements to the existing restaurant are consistent with this exemption. Zoning Administrator Resolution No. ZA2021-025 Page 2 of 14 01-25-19 3. Class 15 exemption includes the division of property in urbanized areas zoned for residential, commercial, or industrial use into four (4) or fewer parcels when the division is in conformance with the General Plan and zoning, no variances or exceptions are required, all services and access to the proposed parcel to local standards are available, the parcel was not involved in a division of a larger parcel within the previous two (2) years, and the parcel does not have an average slope greater than 20 percent. This exemption includes a minor lot merger not resulting in the creation of any new parcel that complies with the conditions specified above. 4. The exceptions to this categorical exemption under Section 15300.2 are not applicable. The project location does not impact an environmental resource of hazardous or critical concern, does not result in cumulative impacts, does not have a significant effect on the environment due to unusual circumstances, does not damage scenic resources within a state scenic highway, is not a hazardous waste site, and is not identified as a historical resource. SECTION 3. REQUIRED FINDINGS. LOT MERGER In accordance with Section 19.68.030 (Lot Mergers) of the Newport Beach Municipal Code, the following findings and facts in support of such findings are set forth: Finding: A. Approval of the merger will not, under the circumstances of this particular case, be detrimental to the health, safety, peace, comfort and general welfare of persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City, and further that the proposed lot merger is consistent with the legislative intent of this title Facts in Support of Finding: 1. The lot merger to combine two (2) existing lots by removing the interior lot line between the lots will not result in the creation of additional parcels. 2. The project is in an area with an average slope of less than 20 percent. Maximum slopes on the project site are a maximum of 15 percent. 3. The lot merger is consistent with the purpose and intent of Title 19 (Subdivisions). 4. The future development on the proposed parcel will be subject to the Zoning Code development standards, which are intended to promote orderly development, protect neighborhood character, and preserve public health, safety, and general welfare of the City. Zoning Administrator Resolution No. ZA2021-025 Page 3 of 14 01-25-19 Finding: B. The lots to be merged are under common fee ownership at the time of the merger. Fact in Support of Finding: 1. The two (2) lots to be merged are under common fee ownership and are conditioned to remain under common fee ownership prior to recordation of the lot merger. Finding: C. The lots as merged will be consistent or will be more closely compatible with the applicable zoning regulations and will be consistent with other regulations relating to the subject property including, but not limited to, the General Plan and any applicable Coastal Plan or Specific Plan. Facts in Support of Finding: 1. The merged lots will retain the Commercial Corridor (CC) zoning designation, consistent with the surrounding area. The CC Zoning District is intended to provide for areas appropriate for a range of neighborhood-serving retail and service uses along street frontages that are located and designed to foster pedestrian activity. 2. The Land Use Element of the General Plan designates the subject site as Corridor Commercial (CC). 3. The subject property is not located within a Specific Plan area. 4. Section 20.20.030 (Commercial Zoning Districts General Development Standards) of the Zoning Code establishes minimum lot area and width requirements. The proposed merger would result in a 11,088-square-foot parcel that is in conformance to the minimum 5,000-square-foot lot area standard of the Zoning Code. Additionally, the proposed merger would result in a lot width of approximately 117 feet, meeting the minimum 25-foot lot width, standard of the Zoning Code. Finding: D. Neither the lots as merged nor adjoining parcels will be deprived of legal access as a result of the merger. Zoning Administrator Resolution No. ZA2021-025 Page 4 of 14 01-25-19 Facts in Support of Finding: 1. No adjoining parcels will be deprived of legal access as a result of the merger. Legal access is provided from East Coast Highway. 2. Currently, the site can be accessed from East Coast Highway and Jasmine Avenue. Due to the site circulation upgrades, the site will provide one (1)-way access from East Coast Highway with egress onto Jasmine Avenue. 3. That the design of the development will not conflict with any easements acquired by the public at large for access through or use of property within the proposed development. Finding: E. The lots as merged will be consistent with the surrounding pattern of development and will not create an excessively large lot that is not compatible with the surrounding development. Facts in Support of Finding: 1. Properties within the vicinity consist of varying shapes and sizes, including both residential and commercial properties. Properties to the east and west fronting East Coast Highway are zoned Commercial Corridor (CC) and consist of many conforming and non-conforming lots sizes. 2. The proposed lot merger will not create an excessively large lot in comparison to many of the existing lots in the area. There are many existing lots in the surrounding neighborhood that are similar to the proposed lot area such as 3140 East Coast Highway, which is approximately 12,977 square feet, 3101 East Coast Highway, which is approximately 9,591 square feet and 2841 East Coast Highway, which is approximately 13,150 square feet, among others. 3. Existing properties along East Coast Highway consist of varying widths. The lots range from 25 feet to 344 feet wide. The depths of the lots approximately range from 62 feet to 346 feet. The proposed lot merger would result in a lot width of 117 feet and a lot depth of 153 feet. Finding: F. The proposed division of land complies with requirements as to area, improvement and design, flood water drainage control, appropriate improved public roads and property access, sanitary disposal facilities, water supply availability, environmental protection, and other applicable requirements of this title, the Zoning Code, the General Plan, and any applicable Coastal Plan or Specific Plan. Zoning Administrator Resolution No. ZA2021-025 Page 5 of 14 01-25-19 Facts in Support of Finding: 1. Approval of the proposed lot merger would remove the existing interior lot line and allow the property to be used as a single site. The proposed lot would comply with all design standards and improvements required for new subdivisions by Title 19, General Plan, and Coastal Land Use Plan. 2. That public improvements will be required of the Applicant per the Municipal Code and the Subdivision Map Act. Public Works requires that the existing street tree within the East Coast Highway and Jasmine Avenue rights-of-way shall be protected in place, reconstruction the driveway approach on Jasmine Avenue per City Standard 160, and that the proposed parking layout shall comply with City Standard 805. Minor slope modifications may be permitted due to existing site conditions and previous approvals. 3. The subject property is not subject located in a Specific Plan area. STAFF APPROVAL Pursuant to Section 20.54.070 (Changes to an Approved Project), the Community Development Director may authorize minor changes to an approved site plan, architecture, or the nature of the approved use without a public hearing, and waive the requirement for a new use permit application. Pursuant to Section 20.50.30.B (Concurrent Processing), multiple applications for the same project shall be processed concurrently, and shall be reviewed and approved, modified, or denied by the highest review authority. In this case, the Zoning Administrator is the higher review authority. This approval and waiver of a new use permit application is based on the following findings and facts in support of the findings. Finding: G. The changes are consistent with all applicable provisions of this Zoning Code. Facts in Support of Finding: 1. The project is located in the Commercial Corridor (CC) Zoning District. The Commercial Corridor is intended to provide for areas appropriate for a range of neighborhood-serving retail and service uses along street frontages that are located and designed to foster pedestrian activity. The proposed restaurant is a commercial use that serves visitors, residents, shoppers, and employees in the area, and the restaurant and outdoor dining patio is consistent with the purpose of the Commercial Corridor zone. 2. Eating and drinking establishments are allowed uses within Commercial Corridor Zoning District. Pursuant to section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements), the on-premise sale of alcohol in conjunction with an eating and drinking establishment is subject to approval of a use permit. The existing restaurant with alcohol service and outdoor dining patio is consistent with Zoning Administrator Resolution No. ZA2021-025 Page 6 of 14 01-25-19 the Commercial Corridor Zoning District and the operational characteristics approved under Use Permit No. UP1936 and Outdoor Dining Permit No. OD0027. Finding: H. The changes do not involve a feature of the project that was a basis for or subject of findings or exemptions in a negative declaration or Environmental Impact Report for the project. Facts in Support of Finding: 1. The previously approved Use Permit was determined to be categorically exempt from the requirements of the California Environmental Quality Act under Class 1 (Existing Facilities), which exempts minor alterations to existing facilities involving negligible expansion of use beyond that existing at the time of the lead agency’s determination and Class 15 (Minor Land Divisions), which exempts the division of property into four (4) or fewer parcels. 2. The tenant improvement qualifies for a Class 1 (Existing Facilities) categorical exemption as the improvement is a minor alteration and addition to an existing facility involving a negligible expansion of the authorized use. The lot merger qualifies for a Class 15 (Minor Land Divisions), which includes a minor lot merger not resulting in the creation of any new parcel that complies with the conditions specified above. 3. Refer to the full CEQA determination in Section 2 of this Resolution. Finding: I. The changes do not involve a feature of the project that was specifically addressed or was the subject of a condition(s) of approval for the project or that was a specific consideration by the applicable review authority in the project approval. Facts in Support of Finding: 1. The proposed tenant improvements which include entry modification, an interior and exterior façade remodel, new pick-up window, patio updates, and ADA parking and access enhancements are not limited by an existing condition of approval for the project. 2. The net public area and outdoor patio areas are consistent with the square footage authorized in the original use permit and outdoor dining permit. 3. The parking spaces provided on-site is consistent with the use permit, less spaces lost as a result of necessary ADA improvements in accordance with Section 20.40.110 (A) - (Adjustments to Off-Street Parking Requirements). Zoning Administrator Resolution No. ZA2021-025 Page 7 of 14 01-25-19 4. The proposed take-out window will provide adequate queuing so that customers do not spill into the public right-of-way. Finding: J. The changes do not result in an expansion or change in operational characteristics of the use. Fact in Support of Finding: 1. The eating and drinking establishment use with alcohol sales will remain unchanged as a result of the tenant improvement. The use will not change as the same conditions of approval are applicable, including requirements and limitations on food service and live entertainment. The hours of operation of from 6:00 a.m. to 12:00 midnight will be the same as previously approved under Use Permit No. UP1936. The hours of operation of the outdoor dining area from 8:00 a.m. through 9:00 p.m. will be the same as previously approved under Outdoor Dining Permit No. OD0027. Therefore, the proposed changes do not result in an expansion or change in operational characteristics of the use. 2. All employees of the restaurant facility shall park on-site at all times. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Zoning Administrator 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 15315, under Class 15 (Minor Land Divisions) 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 Zoning Administrator of the City of Newport Beach hereby approves Lot Merger No. LM2021-002 and Staff Approval No. SA2021-001, 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 14 days after the adoption of this Resolution unless within such time an appeal or call for review is filed with the Director of Community Development in accordance with the provisions of Title 19 (Subdivisions) and Chapter 20.64 (Appeals), of the Newport Beach Municipal Code. Zoning Administrator Resolution No. ZA2021-025 Page 8 of 14 01-25-19 PASSED, APPROVED, AND ADOPTED THIS 13th DAY OF MAY, 2021. Zoning Administrator Resolution No. ZA2021-025 Page 9 of 14 01-25-19 EXHIBIT “A” CONDITIONS OF APPROVAL PLANNING 1. The map shall be submitted to the Public Works Department for Final Map Review and Approval. All applicable fees shall be paid. 2. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 3. Prior to recordation of the lot merger, the two (2) lots shall be held entirely under one (1) common fee ownership. 4. Lot Merger No. LM2021-002 shall expire unless exercised within twenty-four (24) months from the date of approval as specified in Section 20.54.060 of the Newport Beach Municipal Code, unless an extension is otherwise granted. 5. To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney’s fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City’s approval of the Chipotle Mexican Grill including, but not limited to, Lot Merger No. LM2021- 002 and Staff Approval No. SA2021-001 (PA2021-009). 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. 6. All previous applicable conditions of approval of Use Permit No. UP1936, UP1936 Amendment, and Outdoor Dining Permit No. OD0027 shall remain in full force and effect. 7. The development shall be in substantial conformance with the approved site plan, floor plan, and elevations stamped and dated with the date of this approval except as modified by applicable conditions of approval. 8. All references to approved plans in prior conditions of approval shall hereby refer to the approved plans stamped and dated with the date of this approval. BUILDING Zoning Administrator Resolution No. ZA2021-025 Page 10 of 14 01-25-19 9. All customers shall access the building from the public right of way. 10. Prior to issuance of building permits, the path of travel shall comply with the five (5) percent maximum slope on private property and the maximum existing street slope along the public sidewalk in the direction of travel and a two (2) percent maximum cross slope. 11. Prior to issuance of building permits, the final design of the sidewalk along Jasmine Avenue is subject to further review and approval from the Building Division if the Public Works Department does not authorize the final design. PUBLIC WORKS 12. Project shall install a new 36-inch box street tree within the Jasmine Avenue public right- of-way. Tree type shall be consistent with City Council Policy G. 13. The existing street tree within the East Coast Highway and Jasmine Avenue rights-of- way shall be protected in place. 14. The pavement markings shall be per the latest edition of the Caltrans Standard Plans and the signage shall be per the latest edition of the California Manual on Uniform Traffic Control Devices (CA MUTCD). 15. The driveway approach on Jasmine Avenue shall be reconstructed per City Standard 160. 16. The sidewalk along the Jasmine Avenue frontage shall be reconstructed per City Standard 180. Final design of the sidewalk along Jasmine Avenue is subject to further review and approval from the Public Works Department. 17. No structural improvements are permitted within East Coast Highway right-of-way, Jasmine Avenue right-of-way and road easement area along East Coast Highway, including but not limited to walls, footing, foundations, caissons, ramps, etc. 18. Prior to issuance of building permits, the proposed parking layout shall comply with City Standard 805. Minor modifications due to parking on slopes and drive aisle slopes may be permitted due to existing site conditions and previous approvals. Final approval for building permits issuance shall be obtained from the City Traffic Engineer. CONDITIONS FROM PREVIOUS APPROVALS FOR REFERENCE Use Permit No. UP1936 1. The development shall be in substantial conformance with the approved plot plan and floor plan. (No longer applicable) Zoning Administrator Resolution No. ZA2021-025 Page 11 of 14 01-25-19 2. That the trash container located in the parking lot shall be relocated to a site that does not obstruct a parking space and is not visible from adjacent residences or streets. 3. That the restaurant facility shall be limited to the hours from 6:00 a.m. to 12:00 midnight. 4. That employees of the restaurant facility shall park on-site at all times. 5. That the applicant shall utilize his best efforts in the next two (2) years to obtain the dedication to the public of a 10’ radius corner at the corner of East Coast Highway and Jasmine Avenue, at which time the use permit shall be reviewed by the Modifications Committee. Amendment to UP1936 1. That development shall be in substantial conformance with the approved plot plan and floor plan, except as may be noted below. (No longer applicable) 2. That the existing temporary building be removed from the site within twenty-one (21) days of the expiration date of the appeal period. (No longer applicable) 3. That a trash enclosure be constructed in accordance with the approved plan. 4. That the restaurant facility shall be limited to the hours from 6:00 a.m. to 12:00 midnight. 5. That employees of the restaurant facility shall park on-site at all times. 6. That the live entertainment shall be limited to two (2) persons at any one (1) time. 7. That there be no separate or additional amplification of the live entertainment other than through the facility’s existing built-in system. 8. That the noise from the live entertainment be confined to the interior of the structure. 9. That all improvements be constructed as required by ordinance or the Public Works Department. 10. That the leaseholder shall dedicate his interests in a ten-foot radius corner cutoff at the corner of East Coast Highway and Jasmine Avenue, and that the dedications be completed prior to implementations of the revised use permit. 11. That the applicant obtain an encroachment permit from CalTrans for the planter constructed within the East Coast Highway Frontage. If a permit is not obtainable, the applicant shall remove the planter. 12. That all mechanical equipment, outdoor storage and trash areas shall be screened from the alley, adjoining properties, and streets. 13. That the rear parking area shall be repaved and striped in accordance with the attached parking plan. (No longer applicable) Zoning Administrator Resolution No. ZA2021-025 Page 12 of 14 01-25-19 14. That the service of alcoholic beverages shall be incidental to the primary food service operations. No bar area shall be constructed without amending this use permit. 15. That the subject restaurant shall be operated in a manner compatible with the adjacent residential district. 16. There shall be no trash pick-up or delivery of supplies or merchandise before 7:00 a.m. 17. That the Planning Commission may add/or modify Conditions of Approval to this use permit upon a determination that the operation, which is the subject of this use permit, causes injury, or is detrimental to the health, safety or welfare of the community. 18. That the proposed vending cart shall not be permitted. 19. No food or alcoholic beverages shall be served outside of the building at any time. The service of non-alcoholic beverages shall be permitted only during daylight hours outside of the building. 20. That no stage be constructed on the premises. 21. That an electrical permit be obtained and the parking lot lights be inspected. Said lights shall shielded or adjusted so as to confine the illumination to the restaurant site. Outdoor Dining Permit No. OD0027 1. That development shall be in substantial conformance with the approved plot plan and floor plan, except as noted in the following conditions. (No longer applicable) 2. That the accessory outdoor dining shall be used in conjunction with the related adjacent food establishment and shall be limited 150 ± square feet maximum (gross area), as proposed (25 percent of the indoor net public are of 600 ± square feet), unless a use permit is obtained from the Planning Commission. 3. That the area outside of the food establishment, including the public sidewalks, shall be maintained in a clean and orderly manner and may be subject to providing steam cleaning of the public sidewalks as required by the Public Works Department. 4. That the trash receptacles for patrons shall be conveniently located outside of the related restaurant facility to serve the accessory outdoor dining area. 5. That no outside paging system shall be utilized in conjunction with this outdoor dining establishment. 6. That the seating adjacent to the food use facility shall be limited to the area as delineated on the approved site plan only. That the approved outdoor dining area shall be located on a solid surface in accordance with the approved floor plan or seating plan. (No longer applicable) Zoning Administrator Resolution No. ZA2021-025 Page 13 of 14 01-25-19 7. That the tables and seats shall be permanently affixed or of unitized construction, no freestanding tables shall be permitted, the specific number of table tops and seating shall be consistent with the site plan approved by the Planning Department (10 units of Model No. TF 3105 as depicted on the seating plan detail). 8. That this approval of Outdoor Dining Permit No. OD0027 is non-transferable by the permittee or property owner; and should this business 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 owner or the leasing company, and that this approval does not extend to future owners and that a new application must be approved by the Planning Department. (No longer applicable) 9. That the Planning Division may add to or modify conditions of approval to this outdoor dining permit, or revoke this approval upon a finding of failure to comply with the conditions set forth in Chapter 20.72 of the municipal Code or other applicable conditions and regulations governing the food establishment. The Planning Director may also recommend to the Planning Commission or City Council the revocations of this permit upon a detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. Special Conditions of Outdoor Dining Permit No. OD0027 10. That the hours of operation of the outdoor dining area is limited to between the hours of 8:00 a.m. and 9:00 p.m., daily; and that any increase in the hours of operation shall be subject to the approval of amendment to this application and may require an amendment to Use Permit No. UP1936 and UP1936 (Amended). 11. That alcoholic beverage service shall be prohibited in the outdoor dining areas, unless the approval of an amendment to the use permit is first obtained and the subsequent approval of the Police Department and Alcoholic Beverage Control Board. Any substantial physical changes require (as determined by the Planning Department) to accommodate alcoholic beverage service shall be subject to the approval of amendment to this Outdoor Dining Permit. 12. That all applicable conditions of approval of Use Permit No. UP1936 and UP1936 (Amended) shall remain in force. 13. That should problems arise with regard to noise associated with the outdoor dining areas, the Planning Division shall require the removal of all or a portion of the outdoor dining area seating in the areas which contribute to the noise problems or complaints. 14. That should problems arise with regard to tables, chairs or stools encroaching into the public right-of-way, private property pedestrian access or walkways, the Planning Division shall require the removal of all or a portion of the outdoor dining area seating. 15. That the use of the rear door shall be limited to deliveries and employee use only, use by costumers as an entry shall be prohibited. Zoning Administrator Resolution No. ZA2021-025 Page 14 of 14 01-25-19 16. That deliveries shall be prohibited between the hours of 10:00 p.m. and 8:00 a.m., daily. 17. That use of the rear door shall be prohibited between the hours of 10:00 p.m. and 8:00 a.m., daily. 18. That for sunshade purposes, coverings shall maintain a minimum vertical clearance of 7 feet measured from the floor of the dining area to the lowest portion of the shade structure. That the use of solid, permanent roof coverings or patio covers shall be prohibited, unless of open beam construction or of a fabric type material, such as a retractable awning.