HomeMy WebLinkAbout2021-84 - Authorizing an Additional Extension of Emergency Temporary Use Permits Issued to Commercial and Institutional Uses to Operate on Private Property, Parking Lots, Sidewalks, and Public Property and Temporarily Waiving Council Policy L-21 (PA2020-0RESOLUTION NO. 2021-84
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, AUTHORIZING AN
ADDITIONAL EXTENSION OF THE EMERGENCY
TEMPORARY USE PERMITS ISSUED TO COMMERCIAL
AND INSTITUTIONAL USES TO OPERATE ON PRIVATE
PROPERTY, PARKING LOTS, SIDEWALKS, AND PUBLIC
PROPERTY AND TEMPORARILY WAIVING COUNCIL
POLICY L-21 (PA2020-069)
WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the City
Council with the authority to make and enforce all laws, rules, and regulations with respect
to municipal affairs subject only to the restrictions and limitations contained in the Charter
and the State Constitution, and power to exercise, or act pursuant to any and all rights,
powers, and privileges, or procedures granted or prescribed by any law of the State of
California ("State");
WHEREAS, in response to the COVID-19 outbreak and subsequent declarations of
emergency by the United States Secretary of Health and Human Services on January 31,
2020 and by Governor Newsom on March 4, 2020, the City Council adopted Emergency
Ordinance No. 2020-005 on May 26, 2020 authorizing the Community Development Director
to grant emergency temporary use permits ("ETUP") for commercial and institutional uses
to operate on private property, parking lots, sidewalks, and public property;
WHEREAS, on July 29, 2020, the California Department of Public Health issued
COVID-19 Industry Guidance for dine -in restaurants, which provides direction for dine -in
restaurants, brewpubs, craft distilleries, breweries, bars, pubs, and wineries to support a
safe, clean environment for workers and customers, including organization, sanitation, and
social distancing guidelines;
WHEREAS, on June 8, 2021, the City Council adopted Resolution No. 2021-58
extending the expiration date for ETUPs, issued pursuant to Emergency Ordinance No.
2020-005, to September 6, 2021;
WHEREAS, in late July 2021, the Delta variant created additional challenges for
businesses, making it more difficult for businesses to return to usual operations in
compliance with Cal OSHA Emergency Temporary Standards and guidelines of other
agencies regarding physical distancing, increased ventilation, and the use of outdoor areas
as measures to reduce transmission of COVID-19; and
Resolution No. 2021-84
Page 2 of 3
WHEREAS, to help assist commercial businesses and institutions to operate in a
safe manner in accordance with the guidance from federal, state, and local health officials,
it is necessary to continue to temporarily allow commercial and institutional uses to operate
on private property, parking lots, sidewalks, and public property.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows:
Section 1: All emergency temporary use permits (ETUP) that have been issued,
and which have not been revoked, shall remain valid through December 31, 2021, subject to
the ETUP permit holders compliance with the conditions of approval and procedures
established by Emergency Ordinance No. 2020-005.
Section 2: ETUP permit holders may apply for a limited term permit to continue to
use spaces authorized through an ETUP which will go into effect after the extensions set
forth in Section 1. Applications will be reviewed on an individual basis based on the merits
of the location, availability of parking, and land use compatibility. Outdoor dining design and
processing guidelines will be developed to ensure permanent outdoor facilities are
aesthetically integrated and do not negatively impact surrounding uses. Limited term permit
fees and associated coastal development permit fees shall be waived with the exception of
public noticing fees when required (for any application that proposes a term of 90 days or
longer).
Section 3: For all ETUP permits and new limited term permits, the City Council
hereby waives City Council Policy L-21 (Sidewalk Cafe Standards and Procedures) for the
duration of said permits.
Section 4: Except as expressly set forth herein, nothing contained in this resolution
shall be deemed to waive any fees otherwise required by any other provision of law,
including fees collected by the City on behalf of any other public agency or entity, nor
otherwise waive compliance with any other applicable provisions of the Newport Beach
Municipal Code or any other City ordinance, policy or regulation.
Section 5: The City Council finds the adoption of this resolution is exempt from the
California Environmental Quality Act ("CEQA") pursuant to Section 15301 (Class 1, Existing
Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6,
Chapter 3, because the project consists of 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
existing or former use. This exemption includes additions to existing structures that will not
result in an increase of more than 50 percent of the floor area of the structures before the
addition, or 2,500 square feet, whichever is less.
Resolution No. 2021-84
Page 3 of 3
Section 6: The recitals provided in this resolution are true and correct and are
incorporated into the substantive portion of this resolution.
Section 7: Emergency Ordinance No. 2020-005, adopted by the City Council on
May 26, 2020, is attached hereto as Exhibit "A" and incorporated herein by reference to this
resolution.
Section 8: The City hereby rescinds Resolution 2021-58, and replaces it with
the current resolution.
Section 9: If any section, subsection, sentence, clause or phrase of this resolution
is for any reason held to be invalid or unconstitutional, such decision shall not affect the
validity or constitutionality of the remaining portions of this resolution. The City Council
hereby declares that it would have passed this resolution and each section, subsection,
sentence, clause or phrase hereof, irrespective of the fact that any one or more sections,
subsections, sentences, clauses or phrases be declared invalid or unconstitutional.
Section 10: This resolution shall take effect immediately upon its adoption by the
City Council and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 14th day of September, 2021.
Brad Av
Mayor
ATTEST:
A XZ 10101"11 :_W'
V" W llr �.
Leilani I. Brown b(81
City Clerk
APPROVED AS TO FORM:
CITY A TORNEY'S OFFICE
Aaron C. Harp
City Attorney
Attachment: Exhibit A - Emergency Ordinance No. 2020-005
EXHIBIT A
EMERGENCY ORDINANCE NO. 2020-005
AN EMERGENCY ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF NEWPORT BEACH, CALIFORNIA,
AUTHORIZING THE COMMUNITY DEVELOPMENT
DIRECTOR TO GRANT EMERGENCY TEMPORARY USE
PERMITS TO COMMERCIAL BUSINESSES AND
RELIGIOUS INSTITUTIONS FOR THE UTILIZATION OF
PRIVATE PROPERTY, PARKING LOTS, SIDEWALKS AND
PUBLIC PROPERTY
WHEREAS, Section 200 of the Charter of the City of Newport Beach ("City") vests
the City Council with the authority to make and enforce all laws, rules and regulations with
respect to municipal affairs subject only to the restrictions and limitations contained in the
Charter and the State Constitution, and the power to exercise, or act pursuant to any and
all rights, powers, and privileges, or procedures granted or prescribed by any law of the
State of California;
WHEREAS, on January 31, 2020, the United States Secretary of Health and
Human Services announced a nationwide public health emergency, in response to the
COVID-19 outbreak;
WHEREAS, on March 4, 2020, Governor Gavin Newsom declared a State of
Emergency to make additional resources available, formalize emergency actions already
underway across multiple state agencies and departments, and help the state prepare for
the broader spread of COVID-19 ("State of Emergency);
WHEREAS, on March 11, 2020, the World Health Organization declared the
COVID-19 outbreak a pandemic;
WHEREAS, on March 15, 2020, Governor Newsom called for all bars, wineries,
nightclubs and brewpubs to close throughout the state, urged all seniors and people with
chronic health conditions to isolate themselves at home, and for restaurants to reduce
occupancy by half to keep people farther away from each other;
WHEREAS, on March 15, 2020, in response to the COVID-19 outbreak, Newport
Beach City Manager Grace Leung, who is the Director of Emergency Services ("Director
of Emergency Services") for the City, issued a Proclamation of Local Emergency
("Proclamation");
WHEREAS, on March 18, 2020, the Newport Beach City Council ratified the
Proclamation and authorized the Director of Emergency Services to take certain actions
to protect the health, safety, and welfare of the public;
Emergency Ordinance No. 2020-005
Page 2 of 6
WHEREAS, on March 19, 2020, Governor Newsom issued Executive Order N-33-
20, requiring all individuals living in the State of California to stay home or at their place
of residence, except as needed to maintain continuity of operations of the federal critical
infrastructure sectors ("Stay at Home Order");
WHEREAS, on March 19, 2020 the Federal Cybersecurity and Infrastructure
Security Agency issued guidance identifying 14 critical infrastructure sectors whose
workers provide services and functions that are essential to support a strong response to
the COVID-19 outbreak;
WHEREAS, on April 14, 2020, Governor Newsom outlined six factors that the
State of California would consider when modifying the Stay at Home Order including: (1)
the ability to test, contact trace, isolate, and support the exposed; (2) the ability to protect
those at high risk for COVID-19; (3) the surge capacity for hospital and health systems;
(4) the therapeutic development to meet the demand; (5) the ability of businesses,
schools, and childcare facilities to support physical distancing; and (6) a determination of
when to reinstitute measures like Stay at Home;
WHEREAS, on April 28 2020, Governor Newsom announced four "Resilience
Roadmap Stages" that the State of California would use to guide its gradual reopening
process, which consists of the following four stages: Stage 1, Safety and Preparedness;
Stage 2, Lower Risk Workplaces; Stage 3, Higher Risk Workplaces; and Stage 4, End of
Stay at Horne Order;
WHEREAS, on May 4, 2020, Governor Newsom announced that, beginning May
8, 2020, the State of California would move from Stage 1, which had been in place
statewide since the issuance of the Stay at Home Order, to Stage 2, which is the gradual
re -opening of some lower risk workplaces;
WHEREAS, COVID-19 has been detected in millions of people worldwide,
including, as of May 13, 2020, 130 cases in the City, and is primarily spread from person
to person;
WHEREAS, COVID-19 is easily transmitted, especially in group settings, and it is
essential that the spread of the virus be slowed to protect the ability of public and private
health care providers to handle the influx of new patients and safeguard public health and
safety;
WHEREAS, as commercial businesses and religious institutions in the City begin
to re -open, it is critical that they do so in a manner where social distancing is maintained
to limit the spread of COVID-19;
Emergency Ordinance No. 2020-005
Page 3of6
WHEREAS, to help existing commercial businesses and religious institutions
operate in a safe manner where social distancing is maintained in accordance with
guidance from the State of California and local health officials, it is necessary to
temporarily allow commercial businesses and religious institutions to operate on private
property, parking lots, sidewalks and public property; and
WHEREAS, Charter Section 412 provides that an ordinance necessary to
preserve the public peace, health or safety, may be introduced and adopted at one and
the same meeting if passed by at least five affirmative votes.
NOW, THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: The City Council of the City of Newport Beach hereby finds and
declares that this emergency ordinance is necessary to help limit the spread of COVID-
19 and to protect the health, safety and welfare of the public because it is essential that
contact between persons, which could lead to the spread of COVID-19, be limited, and
the use of private property, parking lots, sidewalks and public property is necessary to
allow existing commercial businesses and religious institutions operate in a safe manner
where social distancing is maintained in accordance with guidelines issued by the State
of California and local health officials.
Section 2: The Community Development Director is hereby authorized to grant
emergency temporary use permits, which allow for the temporary use of private property,
parking lots, sidewalks and public property for commercial and religious uses.
An application for an emergency temporary use permit shall be filed with the
Community Development Department, on forms approved by the Community
Development Director, and shall include all information and materials specified by the
Community Development Director. After consulting with City departments, as applicable,
the Community Development Director may approve or conditionally approve an
emergency temporary use permit if the Community Development Director finds that the
temporary use would not create a hazard to the health, safety or welfare of the public.
The Community Development Director may impose any conditions deemed necessary to
ensure that the temporary use does not create a hazard to the public health, safety or
welfare of the public.
Emergency Ordinance No. 2020-005
Page 4 of 6
The Community Development Director shall have the authority to immediately
revoke any emergency temporary use permit granted pursuant to this emergency
ordinance if the Community Development Director determines that there has been a
violation of any condition of approval. Any revocation of an emergency temporary use
permit shall be deemed effective upon the posting of a notice of revocation at the site of
the business granted the emergency temporary use permit.
Any decision made by the Community Development Director, pursuant to the
authority granted the Community Development Director under this emergency ordinance,
may be appealed by the applicanttpermittee to the City Manager by notifying the City
Manager of the appeal within three (3) calendar days of the decision. The City Manager
shall have authority to sustain, reverse or modify the decision of the Community
Development Director. The City Manager's decision shall be final.
All application fees and appeal fees directly related to this emergency ordinance
are hereby waived.
Section 3: As long as an emergency temporary use permit is in effect, all
Newport Beach Municipal Code provisions and any restrictions set forth in a discretionary
permit regulating uses, nonconforming uses, development standards, parking, signage,
permit procedures or other regulations specifically addressed in the emergency
temporary use permit that would otherwise regulate the use and development of private
or public property, are hereby suspended for sites subject to an emergency temporary
use permit, to the extent that the Newport Beach Municipal Code provisions or restrictions
set forth in a discretionary permit conflict with the terms of the emergency temporary use
permit.
Section 4: As a condition of receiving an emergency temporary use permit, the
permittees shall agree to defend, indemnify and hold harmless the City and its employees
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
the issuance of the emergency temporary use permit. 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, or proceeding
whether incurred by applicant, City, and/or the parties initiating or bringing such
proceeding.
Emergency Ordinance No. 2020-005
Page 5 of 6
Section 5: Permittees that utilize public property shall obtain and maintain
insurance in an amount specified by the City's Risk Manager, Unless otherwise indicated
by the Risk Manager, permittees shall obtain and maintain commercial general liability
insurance on an "occurrence" basis, including completed products and completed
operations, property damage, bodily injury and personal and advertising injury with a limit
of not less than $1,000,000 per occurrence. This insurance shall be endorsed to name
the "City of Newport Beach, the City Council, its employees, and agents" as additional
insureds, and provide that this insurance is primary and non-contributory with any other
insurance or self-insurance available to the City. Permittees shall also maintain workers'
compensation as required by the State of California with Statutory Limits, and Employer's
Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury or
disease. The Workers' Compensation policy shall be endorsed with a waiver of
subrogation in favor of the "City of Newport Beach, the City Council, its employees, and
agents." If permittee maintains broader coverage and/or higher limits than the minimums
provided in this Section, the City requires and shall be entitled to the broader coverage
and/or higher limits maintained by the permittee. All policies shall be issued by an agent
or representative of an insurance company licensed to do business in the State of
California, which has one of the three highest or best ratings from the Alfred M. Best
company. All insurance policies shall contain an endorsement obligating the insurance
company to furnish the Community Development Director with at least thirty (30) days
written notice in advance of the cancellation of the policy. The City reserves the right to
require a permittee to submit the requisite insurance documents for review at any time.
Section 6: Areas used for temporary commercial and religious uses shall be
accessible to the disabled.
Section 7: The emergency temporary use permit shall expire fourteen (14) days
after this emergency ordinance is terminated or repealed, as provided for in Section 11.
Section 8: The recitals provided in this emergency ordinance are true and
correct and are incorporated into the substantive portion of this emergency ordinance.
Section 9: If any section, subsection, sentence, clause or phrase of this
emergency ordinance is for any reason held to be invalid or unconstitutional, such
decision shall not affect the validity or constitutionality of the remaining portions of this
emergency ordinance. The City Council hereby declares that it would have passed this
emergency ordinance and each section, subsection, sentence, clause or phrase hereof,
irrespective of the fact that any one or more sections, subsections, sentences, clauses or
phrases be declared invalid or unconstitutional.
Emergency Ordinance No. 2020-005
Page 6 of 6
Section 10: The City Council finds and determines that the introduction and
adoption of this emergency ordinance is not subject to the California Environmental
Quality Act ("CEQX) pursuant to Sections 15269(c) (the activity is necessary to prevent
or mitigate an emergency), 15060(c)(2) (the activity will not result in a direct or reasonably
foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is
not a project as defined in Section 15378) of the CEQA Guidelines, California Code of
Regulations, Title 14, Division 6, Chapter 3, because it has no potential for resulting in
physical change to the environment, directly or indirectly.
Section 11: This emergency ordinance shall become effective May 26, 2020, and
shall continue in full force and effect until: (a) the local emergency proclaimed on March
15, 2020 and ratified by the City Council on March 18, 2020, is terminated by proclamation
of the City Council; or (b) such time as this emergency ordinance is repealed in whole, or
in part, by the City Council.
Section 12: The Mayor shall sign, and the City Clerk shall attest to the passage
of this emergency ordinance. The City Clerk shall cause the emergency ordinance, or a
summary thereof, to be published pursuant to City Charter Section 414.
This emergency ordinance was introduced and adopted at a regular meeting of the
City Council of the City of Newport Beach held on the 26th day of May 2020, by the
following vote, to -wit:
Mayor O'Neill, Mayor Pro Tem Avery, Council Member
Brenner, Council Member Dixon, Council Member Duffield
AYES: Council Memb r HQraman, Council Member Muldoon
NAYS:
ABSENT:
ATTEST:
LEILANI I. BROWN, CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
el� c -
AARON C. HARP, CITY 4AO�RNEY
WILL O'NEILL, MAYOR
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the
whole number of members of the City Council is seven; that the foregoing ordinance, being Emergency
Ordinance No. 2020-005, was duly introduced and adopted at a regular meeting of the City Council on
the 261h day of May, 2020, by the following vote, to wit:
AYES: Mayor Will O'Neill, Mayor Pro Tem Brad Avery, Council Member Joy Brenner, Council
Member Diane Dixon, Council Member Duffy Duffield, Council Member Jeff Herdman,
Council Member Kevin Muldoon
NAYS: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of
said City this 271h day of May, 2020.
Leilani I. Brown, MMC ' l
City Clerk
City of Newport Beach, California
CERTIFICATE OF PUBLICATION
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, LEILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify that
Emergency Ordinance No. 2020-005 has been duly and regularly published according to law and the
order of the City Council of said City and that same was so published in The Daily Pilot, a newspaper of
general circulation on the following date:
Published Date: May 30, 2020
2020. In witness whereof, I have hereunto subscribed my name this day ofjk_—,
V V
Leilani I. Brown, M
City Clerk
City of Newport Beach, California
STATE OF CALIFORNIA }
COUNTY OF ORANGE ss.
CITY OF NEWPORT BEACH }
I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the
whole number of members of the City Council is seven; the foregoing resolution, being Resolution
No. 2021-84 was duly introduced before and adopted by the City Council of said City at a regular meeting
of said Council held on the 141h day of September, 2021; and the same was so passed and adopted by
the following vote, to wit:
AYES: Mayor Brad Avery, Mayor Pro Tem Kevin Muldoon, Council Member Joy Brenner,
Council Member Diane Dixon, Council Member Duffy Duffield, Council Member
Will O'Neill
NAYS: None
RECUSED: Council Member Noah Blom
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of
said City this 151h day of September, 2021.
4hk�, (4). && , -
Leilani I. Brown
City Clerk
Newport Beach, California
IN,
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