HomeMy WebLinkAbout08_Shorebird Restaurant Limited Term Permit and CDP_PA2021-185CITY OF NEWPORT BEACH
ZONING ADMINISTRATOR STAFF REPORT
November 24, 2021
Agenda Item No. 8
SUBJECT:Shorebird Restaurant (PA2021-185)
Limited Term Permit No. XP2021-007
Coastal Development Permit No. CD2021-037
SITE LOCATION:2220 Newport Boulevard, Suite 101
APPLICANT:Hamptons Newport Beach LLC DBA Shorebird
OWNER: NP Beach Marina LLC
PLANNER: David S. Lee, Associate Planner
949-644-3225, dlee@newportbeachca.gov
LAND USE AND ZONING
General Plan Land Use Plan Category:MU-W2 (Mixed-Use Water 2)
Zoning District: MU-W2 (Mixed-Use Water)
Coastal Land Use Plan Category: MU-W (Mixed-Use Water Related)
Coastal Zoning District: MU-W2 (Mixed-Use Water)
PROJECT SUMMARY
A request for a limited term permit and coastal development permit to allow a 350-square-
foot maximum expanded outdoor dining area for up to a one-year term (January 1, 2022
through December 31, 2022). The expanded outdoor dining area was previously authorized
through Emergency Temporary Use Permit No. UP2020-182 (PA2020-339) for Shorebird
Restaurant.
RECOMMENDATION
1) Conduct a public hearing;
2) Find this project 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; and
3) Adopt Draft Zoning Administrator Resolution No. _ approving Limited Term Permit No. XP2021-007 and Coastal Development Permit No. CD2021-037 (Attachment No. ZA 1).
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Shorebird Restaurant (PA2021-185)
Zoning Administrator, November 24, 2021
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DISCUSSION
A request for a limited term permit and coastal development permit to allow a 350-
square-foot maximum expanded outdoor dining area for up to a one-year term
(January 1, 2022 through December 31, 2022). An expanded dining area was
previously authorized through Emergency Temporary Use Permit No. UP2020-182
(PA2020-339) for Shorebird Restaurant.
The expanded dining area will occupy a portion of a common area walkway between
2220 and 2230 Newport Boulevard at the Vue Newport development. The dining
area will maintain a 6-foot, vertical pedestrian easement for coastal access.
Outdoor dining areas are common in the Balboa Peninsula area, have been used at
the subject property during similar hours in the past and the use has not proven
detrimental. The existing hours of operation for the restaurant are 6:00 a.m. through
10:00 p.m., Monday through Wednesday, and 6:00 a.m. to 11:00 p.m., Thursday
through Sunday). As conditioned, the temporary outdoor dining area will close by
10:00 p.m., daily.
The subject lot is accessed from Newport Boulevard. A subterranean parking
structure is provided on-site, with additional metered street parking on Balboa
Boulevard. The expanded outdoor dining area does not occupy any parking areas
and is located on an interior common area walkway within the Vue Newport
development. Sufficient parking is provided on-site and traffic issues are not
anticipated with the continued use of the expanded dining area.
The City is also undergoing an analysis of parking rates including rates related to
food service and outdoor dining. Findings and recommendations of this study are
anticipated by December of 2021, and may inform a future conditional use permit
amendment for outdoor dining areas.
ENVIRONMENTAL REVIEW
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.
The Class 1 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
Class 3 exemption includes a store, motel, office, restaurant, or similar structure not
involving the use of significant amounts of hazardous substances, not exceeding 2,500
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Shorebird Restaurant (PA2021-185)
Zoning Administrator, November 24, 2021
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square feet in floor area or 10,000 square feet in floor area in urbanized areas zoned for
such use. The proposed scope of work is a maximum 350-square-foot expanded outdoor
dining patio at an existing restaurant for a up to a one-year limited term (January 1, 2022
through December 31, 2022) and qualifies under the parameters of the Class 1 and Class
3 exemptions. There are no known exceptions listed in CEQA Guidelines Section 15300.2
that would invalidate the use of these exemptions.
PUBLIC NOTICE
Notice of this application was published in the Daily Pilot, mailed to all owners and
residential occupants of property within 300 feet of the boundaries of the site (excluding
intervening rights-of-way and waterways), including the applicant, and posted on the
subject property at least 10 days before the scheduled hearing, consistent with the
provisions of the Municipal Code. Additionally, the item appeared on the agenda for this
meeting, which was posted at City Hall and on the City website.
APPEAL PERIOD:
An appeal or call for review may be filed with the Director of Community Development within
14 days following the date of action. Administrative procedures for appeals are provided in
the Newport Beach Municipal Code Chapter 20.64 and 21.64. A fee is not required to appeal
any final action on a coastal development permit to the Planning Commission. The project
site is located within the appeal area of the coastal zone; therefore, final action by the City
may be appealed to the California Coastal Commission. For additional information on filing
an appeal, contact the Planning Division at 949-644-3200.
Prepared by:
__________________________
David S. Lee, Associate Planner
MKN/dl
Attachments: ZA 1 Draft Resolution
ZA 2 Vicinity Map
ZA 3 Emergency Temporary Use Permit Action Letter
ZA 4 SCE Clearance Decals
ZA 5 Project Plans
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Attachment No. ZA 1
Draft Resolution
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RESOLUTION NO. ZA2021-###
A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE
CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING
LIMITED TERM PERMIT NO. XP2021-007 AND COASTAL
DEVELOPMENT PERMIT NO. CD2021-037 TO ALLOW AN
EXPANDED OUTDOOR DINING AREA LOCATED AT 2220
NEWPORT BOULEVARD, SUITE 101 (PA2021-185)
THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Hamptons Newport Beach LLC DBA Shorebirds, with respect
to property located at 2220 Newport Boulevard Suite 101, and legally described as Lot 1
of Tract 16594, requesting approval of a limited term permit and a coastal development
permit.
2. A request for a limited term permit and coastal development permit to allow a 350-square-
foot maximum expanded outdoor dining area for up to a one (1)-year term (January 1,
2022 through December 31, 2022). An expanded outdoor dining area was previously
authorized through Emergency Temporary Use Permit No. UP2020-182 (PA2020-339) for
Shorebirds.
3. The subject property is designated MU-W2 (Mixed-Use Water 2) by the General Plan Land
Use Element and is located within the MU-W2 (Mixed-Use Water) Zoning District.
4. The subject property is located within the coastal zone. The Coastal Land Use Plan
category is MU-W (Mixed-Use Water Related) and it is located within the MU-W2 (Mixed-
Use Water) Coastal Zoning district.
5. A public hearing was held on November 24, 2021, online via Zoom. A notice of time, place
and purpose of the hearing was given in accordance with the Newport Beach Municipal
Code (NBMC). 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 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 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
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Class 3 exemption includes a store, motel, office, restaurant, or similar structure not
involving the use of significant amounts of hazardous substances, not exceeding 2,500
square feet in floor area or 10,000 square feet in floor area in urbanized areas zoned for
such use. The proposed scope of work is a maximum 350-square-foot expanded outdoor
dining patio at an existing restaurant for up to a one (1)-year limited term (January 1, 2022
through December 31, 2022) and qualifies under the parameters of the Class 1 and Class
3 exemptions.
3. 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.
Limited Term Permit
In accordance with Section 20.52.040.G (Limited Term Permits) of the Newport Beach
Municipal Code, the following findings and facts in support of such findings are set forth:
Finding:
A. The operation of the limited duration use at the location proposed and within the time period
specified would not be detrimental to the harmonious and orderly growth of the City, nor
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 requested limited duration use;
Facts in Support of Finding:
1. The limited term permit will allow an extended and expanded outdoor dining patio for up to
a one (1)-year term (January 1, 2022 through December 31, 2022) while the City
reconsiders its parking requirements related to food service uses. The existing food service
use is authorized through Use Permit No. UP2016-048 (PA2016-157) and includes 2,602
square feet of net public area with a maximum 651-square-foot outdoor dining patio.
2. The expanded dining area has not posed a hazard to the general welfare of persons
residing in the area since it was placed during the COVID-19 pandemic in 2020 through
an Emergency Temporary Use Permit. The operation of the expanded dining area is
limited to up to a one (1)-year beginning, and has been reviewed and conditioned to
preclude any detriment to the general welfare of the area.
3. Outdoor dining areas are common in the Balboa Peninsula area, have been used at the
subject property during similar hours in the past and the use has not proven detrimental.
The existing hours of operation for the restaurant are 6:00 a.m. through 10:00 p.m.,
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Monday through Wednesday, and 6:00 a.m. to 11:00 p.m., Thursday through Sunday). As
conditioned, the temporary outdoor dining area will close by 10:00 p.m., daily.
4. The proposed operation is conditioned to be accessible to all persons, including those with
disabilities, in accordance with the Americans with Disabilities Act (ADA).
5. The permitted use shall adhere to applicable State of California and Orange County Health
Care Agency guidelines for the safe operation of the use. It is the responsibility of the
permittee to implement and follow industry-specific guidance of the State of California and
the Orange County Health Care Agency guidelines.
6. The permitted use must be operated in compliance with applicable State Department of
Alcoholic Beverage Control (ABC) requirements.
7. The overall plan includes appropriate delineation of outdoor use spaces with physical
barriers or markers.
Finding:
B. The subject lot is adequate in size and shape to accommodate the limited duration use
without material detriment to the use and enjoyment of other properties located adjacent
to and in the vicinity of the lot;
Facts in Support of Finding:
1. The subject lot is approximately 2.36 acres in size and is developed as a mixed-use
building (Vue Newport). The existing food service use with outdoor dining has operated at
this location since its original approval in 2016. Based upon the site plan, there is adequate
area to accommodate the expanded dining area without impacting pedestrian circulation
and coastal access.
2. The lot is bounded by Newport Bay to the east, Newport Boulevard to the west, and
commercial uses to the north and south. Existing food service uses with outdoor dining
and commercial tenants are located at this site. The expanded outdoor dining use will not
impede use and enjoyment of the Vue Newport development and will instead add to the
ambiance and character of the Balboa Peninsula area.
3. The expanded dining area will occupy a portion of a common area walkway between 2220
and 2230 Newport Boulevard at the Vue Newport development. The dining area will
maintain a 6-foot vertical pedestrian easement for coastal access.
Finding:
C. The subject lot is adequately served by streets or highways having sufficient width and
improvements to accommodate the kind and quantity of traffic that the limited duration use
would or could reasonably be expected to generate;
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Facts in Support of Finding:
1. The subject lot is accessed from Newport Boulevard. A subterranean parking structure is
provided on-site, with additional metered street parking on Balboa Boulevard. The
expanded outdoor dining area does not occupy any parking areas and is located on an
interior common area walkway within the Vue Newport development. Sufficient parking is
provided on-site and no traffic issues are anticipated with the continued use of the
expanded dining area.
2. The City is also undergoing an analysis of parking rates including rates related to food
service and outdoor dining. Findings and recommendations of this study are anticipated
by December of 2021, and may inform a future conditional use permit amendment for
outdoor dining areas.
Finding:
D. Adequate temporary parking to accommodate vehicular traffic to be generated by the
limited duration use would be available either on-site or at alternate locations acceptable
to the Zoning Administrator; and
Facts in Support of Finding:
1. The existing food service use with outdoor dining has operated at the subject property
since 2016. The existing parking structure has historically served as the primary parking
supply for patrons. The parking is expected to adequately accommodate the temporary
use for up to a one (1)-year term (January 1, 2022 through December 31, 2022).
2. The expanded dining area will not impede pedestrian access to the waterfront.
Finding:
E. The limited duration use is consistent with all applicable provisions of the General Plan,
any applicable specific plan, the Municipal Code, and other City regulations.
Facts in Support of Finding:
1. The General Plan land use designation for this site is MU-W2 (Mixed-Use Water 2). The
MU-W2 designation is applied to waterfront locations in which marine-related uses may be
intermixed with buildings that provide residential on the upper floors. The expanded
outdoor dining use is accessory to the existing food service use with outdoor dining, will be
utilized for a limited duration on-site, and will not impede use of the site consistent with the
MU-W2 designation.
2. The site is located in the MU-W2 (Mixed-Use Water) Zoning District. The MU-W2
designation applies to waterfront properties in which marine-related uses may be
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intermixed with general commercial, visitor-serving commercial and residential dwelling
units on the upper floors. The MU-W2 zoning district allows food service uses and the
expanded dining area is a temporary use, authorized with a limited term permit.
3. The Limited Term Permit for expanded outdoor dining would complement and be
consistent with the other commercial uses permitted within the Balboa Peninsula area in
that it provides amenities that support visitors to the area and provides a social gathering
place for those who live and work in the neighborhood, consistent with General Plan Land
Use Element Goal LU2, below. Additional benefits include providing opportunities for the
continuation of local businesses that generate sales tax and provide opportunities for
employment, which is consistent with General Plan Land Use Element Policy LU 2.4
(Economic Development), also copied below:
Goal LU 2 A living, active, and diverse environment that complements all lifestyles
and enhances neighborhoods, without compromising the valued resources that
make Newport Beach unique. It contains a diversity of uses that support the needs
of residents, sustain and enhance the economy, provide job opportunities, serve
rotect its important
environmental setting, resources, and quality of life.
Policy LU 2.4 Economic Development Accommodate uses that maintain or
maintaining and improving the quality of life for current and future residents. (Imp
1.1, 24.1)
4. Council Policy D-9 recognizes the need to balance economic development objectives with
protection of the environment and the health and safety of the community. The policy
recognizes the need to provide effective and efficient structures for implementing economic
programs, utilizing staffing to provide healthy, thriving businesses, and maintain a healthy
economy while preserving the unique commercial villages in Newport Beach. The
proposed limited term permit would support a local business and economic prosperity while
maintaining the unique character of the Balboa Peninsula community.
5. The site is not located within a specific plan area.
Coastal Development Permit
In accordance with Section 21.52.015 (Coastal Development Permits, Findings and Decision)
of the NBMC, the following findings and facts in support of such findings are set forth:
Finding:
F. Conforms to all applicable sections of the certified Local Coastal Program.
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Facts in Support of Finding:
1. The project site is not located adjacent to a coastal view road, public access way, or
Coastal Viewpoint as identified in the Coastal Land Use Plan. The nearest coastal
viewpoint is the Newport Pier, which is approximately 1,800 feet west from the project site.
The expanded outdoor dining tables comply with all applicable Local Coastal Program
(LCP) development standards and maintains an area consistent with the existing pattern
of development in the Balboa Peninsula. Additionally, the project does not contain any
unique features that could degrade the visual quality of the coastal zone.
2. The Property is located in the coastal zone and the proposed improvements require a
coastal development permit in accordance with Newport Beach Municipal Code (NBMC)
Section 21.52.035(C)(2) (Projects Exempt from Coastal Development Permit
Requirements). The improvements constitute an increase of ten (10) percent or more of
the internal floor area of an existing structure or a lesser improvement that has
previously been undertaken pursuant to California Public Resources Code Section
30610(a). The expanded outdoor dining area and barrier within the public walkway are
minor detached structures. The location of these improvements does not pose a conflict
to coastal resources, coastal access, or other adverse environmental effects.
3. The dining area barrier is installed within the common walkway in the interior of the Vue
Newport development. The barrier delineates the area dedicated for outdoor dining use
and alcohol service from the public walkway. There are no existing City utilities within
the expanded dining area.
4. Development authorized by this permit is not located in any environmentally sensitive
habitat (ESHA) area and public access to the coast will not be blocked. Coastal access
is increased by allowing commercial establishments to re-open allowing public to visit
coastal areas and provides an added amenity for visitors. The proposed operation does
not contain ESHA, wetlands, or sandy beach area.
5. Development authorized is not located in an area in which the California Coastal
Commission retains direct permit review authority.
Finding:
G. Conforms with the public access and public recreation policies of Chapter 3 of the
Coastal Act if the project is located 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 project site is located between the nearest public road and the sea or shoreline.
Implementation Plan Section 21.30A.040 (Determination of Public Access/Recreation
Impacts) requires that the provision of public access bear a reasonable relationship
In this
case, vertical access to the coast is provided via 21st and 26th Streets and lateral access
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is provided via a 5-foot pedestrian easement abutting the Newport Bay. Furthermore, the
project is designed and sited (appropriate height, setbacks, etc.) so as not to block or
impede existing public access opportunities.
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 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 Zoning Administrator of the City of Newport Beach hereby approves Limited Term
Permit No. XP2021-007 and Coastal Development Permit No. CD2021-037 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 following the date this Resolution was
adopted unless within such time an appeal or call for review is filed with the Community
Development Director in accordance with the provisions of Title 20 Planning and Zoning
and Title 21 Local Coastal Implementation Plan, of the Newport Beach Municipal Code.
Final action taken by the City may be appealed to the Coastal Commission in compliance
with Section 21.64.035 of the
Regulations, Sections 13111 through 13120, and Section 30603 of the Coastal Act.
PASSED, APPROVED, AND ADOPTED THIS 24TH DAY OF NOVEMBER, 2021.
____________________________
Jaime Murillo, Zoning Administrator
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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 and floor
plans stamped and dated with the date of this approval (except as modified by applicable
conditions of approval).
2. The approval of this Limited Term Permit and Coastal Development Permit shall be
effective from January 1, 2022, to December 31, 2022, unless an extension is granted by
the Zoning Administrator in compliance with Municipal Code Sections 20.52.040.J
(Extension of Limited Term Permit) and 21.54.060 (Time Limits and Extensions). The
applicant shall be required to cease all permitted operations and remove any temporary
improvements made to the outdoor spaces as part of this approval at the end of the
effective period.
3. The expanded dining area shall not exceed 350 square feet in area.
4. The existing allowed hours of operation of the establishment shall not be extended. The
hours of operation of the expanded area as part of this approval shall not extend beyond
10:00 p.m., daily.
5. There shall be no use of amplified sound and/or live entertainment.
6. The applicant shall install and maintain a physical barrier between any area used and
adjacent common pedestrian walkways in accordance with the requirements of the State
Department of Alcoholic Beverage Control.
7. The Applicant shall obtain and maintain authorization from the State Department of
Alcoholic Beverage Control (ABC) for all areas where the sale, service or consumption of
alcohol is under the control of the applicant. The establishment shall abide by all applicable
regulations of the State Department of Alcoholic Beverage Control.
8. The sale of alcohol “to go” to patrons that dine within the expanded outdoor patios shall be
prohibited.
9. The establishment shall abide by all applicable Orange County Health Care Agency
requirements.
10. The permittee shall provide adequate trash receptacles within the permitted patio shall and
the operator shall provide for periodic and appropriate removal of trash, litter debris and
graffiti from the premises and on all abutting sidewalks within 20 feet of the premises.
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11. The project is subject to all applicable City ordinances, policies, and standards, unless
specifically waived or modified by the conditions of approval.
12. The applicant shall comply with all federal, state, and local laws. Material violation of
any of those laws in connection with the use may be cause for revocation of this Use
Permit.
13. This Limited Term Permit and Coastal Development Permit be modified or revoked by
the Zoning Administrator if determined that the proposed uses or conditions under which
it is being operated or maintained is detrimental to the public health, welfare or materially
injurious to property or improvements in the vicinity or if the property is operated or
maintained so as to constitute a public nuisance.
14. Any change in operational characteristics, expansion in area, or other modification to
the approved plans, shall require an amendment to this Limited Term Permit and Coastal
Development Permit.
15. 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
court costs) of every kind and nature whatsoever which may arise from or in any manner
r Limited Term Permit No. XP2021-
007 and Coastal Development Permit No. CD2021-037 (PA2021-185) for Shorebird
Restaurant. 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
16. Any areas used for temporary commercial or institutional use shall be accessible to
disabled persons.
a. A minimum 4-foot-wide accessible path to all functional area shall be provided.
b. Access to restrooms shall be provided at all times.
c. Accessible parking stalls shall not be used for seating areas when onsite parking is
provided.
d. At least one (1) accessible seating area shall be provided.
e. Detectable warnings are required when pedestrian paths cross or are adjacent to a
vehicular way where no physical barrier are provided to separate the two (2).
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17. All exiting paths shall be a minimum 36 inches free and clear. All public walks and
sidewalks shall be a minimum 48 inches free and clear.
Fire Department
18. Covered outdoor dining areas (separate or consolidated) shall comply with the
following standards for tents larger than 400 square feet (2 or more walls) and/or
canopies larger than 700 square feet (no walls or one (1) wall):
Post maximum occupant load.
Do not exceed posted occupant load inside the tent or canopy.
Visible and Mounted Fire Extinguishers with current service tags.
No Smoking Signs shall be installed.
Illuminated Exit Signs shall be installed.
Emergency Lighting shall be provided.
Exit doors are not to be blocked and are to remain accessible as exits while the
tent is occupied.
All interior decorative fabrics or materials shall be flame resistant. Provide
Certificates of Flame Resistance.
If Propane is used, a permit is required: Cooking and heating equipment shall not
be located within 10 feet of exits or combustible materials.
LPG containers shall be located outside and be adequately protected and secured,
and a permit will be required. Open flame or other devices emitting flame, such as
candles, are not permitted inside or within 20 feet of the tent, canopy, or temporary
membrane structure.
Tents and canopies shall have the State Fire Marshall tag indicating fire resistance.
Tents and canopies shall be designed and installed to withstand the elements of
the weather and prevent collapsing through weights and ground anchorage.
19. All Fire Department devices (fire hydrants, fire department connections, water valves,
etc.) shall have a three-foot clearance in all directions.
20. Fire Department devices shall not be covered, blocked or otherwise hidden from plain
view.
21. All building exits shall remain free and clear of any obstacles that would impede exiting
from a building or suite and accessing the nearest public right-of-way.
22. Heat lamps or other heating elements shall comply with the following requirements in
accordance with code section 3107.12 of the California Fire Code:
a. Propane and other fuel-based heating elements (including but not limited to
flammable/combustible gas, liquid, or solid materials) shall not be used within tents
or canopies.
b. Electric heaters must be ul listed for use within tents and/or canopies.
c. Propane and other fuel-based heating devices with blowers may be permitted, with
the heating element located a minimum of 10 feet from the edge of the tent or
canopy.
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d. All heating equipment installations shall be approved for the fire code official.
Public Works Department
23. There shall be a minimum of 5 feet of space around all overhead facilities, such as poles,
and 15 feet of space around all underground facilities, such as vault lids, manholes, vent
pipes, pad-mounted transformers, etc.
24. Seating or structures below overhe
prohibited.
25. Public eating/dining at tables shall not be situated on top of energized vault lids, energized
underground structures, or next to vent pipes, etc.
26. Expanded outdoor dining areas shall adhere to the SCE clearance decal examples
provided in Attachment No. ZA 4.
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Attachment No. ZA 2
Vicinity Map
16
VICINITY MAP
Limited Term Permit No. XP2021-007
Coastal Development Permit No. CD2021-037
(PA2021-185)
2220 Newport Boulevard, Suite 101
Subject Property
Suite 101
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Attachment No. ZA 3
Emergency Temporary Use Permit Action Letter
18
COMMUNITY DEVELOPMENT DEPARTMENT
PLANNING DIVISION
100 Civic Center Drive, P.O. Box 1768, Newport Beach, CA 92658-8915
949-644-3200
www.newportbeachca.gov
COMMUNITY DEVELOPMENT DIRECTOR EMERGENCY
TEMPORARY USE PERMIT ACTION
Subject:Shorebird ETUP and ECDP (PA2020-339)
Emergency Temporary Use Permit No. UP2020-182
Site Location 2220 Newport Boulevard, Suite 100
Applicant Shorebird/Hamptons Newport Beach, LLC
Property Owner Brian Lucas
On November 19, 2020,the Community Development Director approved a revision to
Emergency Temporary Use Permit No. UP2020-121. This approval is based on the
following findings and subject to the following conditions.
I. SUMMARY OF PROPOSED OPERATION
The Applicant proposes to temporarily modify the hours of operation for Shorebird
Restaurant to close at 10:00 p.m. Previously, the outdoor patio operated until 9:00 p.m.
There are no physical improvements with this amendment.
1. This Emergency Temporary Use Permit No. UP2020-182 will supersede the existing
Emergency Temporary Use Permit No UP2020-121 and Emergency Coastal
Development Permit No. CD2020-113. All previous improvements for the expanded
outdoor patio will be maintained with this new ETUP, including all conditions of
approval.
II. CEQA DETERMINATION
The proposed operation is exempt from the California Environmental Quality Act (CEQA)
pursuant to Section 15269 (c) (the activity is necessary to prevent or mitigate an
emergency), Section 15301 Class 1 (Existing Facilities), and Section 15303 Class 3 (New
Construction or Conversion of Small Structures) of the CEQA Guidelines, California Code
of Regulations, Title 14, Division 6, Chapter 3. Section 15269 allows specific actions
necessary to prevent or mitigate an emergency. The Class 1 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 Class 3 exemption includes a
store, motel, office, restaurant, or similar structure not involving the use of significant
amounts of hazardous substances, not exceeding 2,500 square feet in floor area or 10,000
square feet in floor area in urbanized areas zoned for such use. The project includes two
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additional temporary outdoor dining patio areas (approximately 810 square feet in total area)
to an existing restaurant and is within the parameters noted for these exemptions and will
not have a significant effect on the environment. There are no known exceptions listed in
CEQA Guidelines Section 15300.2 that would invalidate the use of these exemptions.
III. EMERGENCY TEMPORARY USE PERMIT FINDINGS
In this case the Community Development Director has found that the temporary use would
not create a hazard to the health, safety, or welfare of the community for the following
reasons:
1. The operation authorized by this Emergency Temporary Use Permit and Emergency
Coastal Development Permit is temporary and only valid during the emergency order
established by Emergency Ordinance No. 2020-005.
2. The project, based upon the Applicant’s project description, approved site plan, and
implementation of all conditions of approval, will be operated safely thereby helping
reduce the spread of COVID-19. The proposed operation is necessary to provide
adequate space to allow for appropriate social distancing.
3. The permitted use shall adhere to applicable State of California and Orange County
Health Care Agency guidelines for the safe operation of the use. It is the responsibility
of the permittee to implement and follow industry-specific guidance of the State of
California and the Orange County Health Care Agency guidelines.
4. The proposed operation has been reviewed by and is acceptable to the Building
Division, Fire & Life Safety Division, and the Public Works Department. Conditions of
Approval are included to help ensure this operation is not detrimental.
5. The proposed operation does not constitute an increase in the overall occupant load
beyond what the existing Use Permit and/or Certificate of Occupancy allow.
6. The proposed operation does not extend any hours of operation beyond those
currently permitted by Conditional Use Permit No. UP2016-048 (6:00 a.m. to 10:00
p.m., Monday through Wednesday, and 6:00 a.m. to 11:00 p.m., Thursday through
Sunday). As conditioned, the temporary outdoor dining areas will close by 10:00 p.m.
7. The expanded outdoor dining area will not affect the existing parking supply for the
restaurant since parking for the establishment is provided below grade.
8. The permitted use must be operated in compliance with applicable State Department
of Alcoholic Beverage Control (ABC) requirements.
9. The plan includes appropriate delineation of outdoor use spaces with temporary
physical barriers or markers.
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10. The proposed operation is conditioned to be accessible to all persons, including
those with disabilities, in accordance with the Americans with Disabilities Act (ADA).
EMERGENCY COASTAL DEVELOPMENT PERMIT FINDINGS
1. The COVID-19 global pandemic has created a National, State and Local
emergency that is more fully described in Emergency Ordinance No. 2020-005.
The COVID-19 outbreak is an emergency pursuant to Newport Beach Municipal
Code (NBMC) Section 21.52.025 because immediate action is necessary to allow
commercial business and institutional uses to re-open consistent with State and
local public health guidelines designed to reduce the spread of COVID-19. If
immediate action is not taken to properly regulate the re-opening of commercial
business and institutional uses, the spread of COVID-19 will likely be more severe
thereby exacerbating the existing public health emergency.
2. Development authorized is temporary and will only be in place during the described
emergency consistent with Emergency Ordinance No. 2020-005. All development
authorized by this permit must be removed after the state of emergency is lifted.
3. Development authorized by this permit is not located in any environmentally
sensitive habitat area and public access to the coast will not be blocked. Coastal
access is increased by allowing commercial establishments to re-open allowing
public to once again visit the coastal areas.
4. The extended patio area will continue to provide adequate vertical access (6-foot
wide access from Arcade/22nd Street) and horizontal access (4-ft wide along the
bulkhead) for pedestrians to access the waterfront.
5. Development authorized is not located in an area in which the California Coastal
Commission retains direct permit review authority.
IV. CONDITIONS OF APPROVAL
1. Only that specifically described above and depicted in the attached site plan is
authorized, subject to the conditions set forth below. Any additional changes require
separate review and may necessitate separate authorization from the Director. The
expanded seating area shall be in substantial conformance with the site plan and
seating layout provided in Attachment CD 3.
2. As long as this Emergency Temporary Use Permit is in effect, all NBMC provisions
and any restrictions set forth in an applicable discretionary permit regulating uses,
nonconforming uses, development standards, parking requirements, and permit
procedures that regulate the use and development of private or public property
operations are suspended only to the extent that the these provisions or restrictions
set forth in a discretionary permit conflict with the terms of this Emergency Temporary
Use Permit.
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3. The expanded outdoor dining patios shall not exceed 810 square feet in total area.
4. The existing allowed hours of operation of the establishment shall not be extended.
The hours of hours of operation of the area modified as part of this Emergency
Temporary Use Permit shall not extend beyond 10:00 p.m.
5.The use of amplified sound within the temporary area shall be prohibited.
6.All dining tables shall be separated from other dining tables and/or waiting areas
by a minimum distance of seven (7) feet to ensure proper social distancing is
maintained.
7. The Applicant shall install and maintain a physical barrier (planters) between any
area used and adjacent common pedestrian walkway.
8. The Applicant shall obtain and maintain authorization from the State Department of
Alcoholic Beverage Control (ABC) for all areas where the sale, service or
consumption of alcohol is under the control of the Applicant. The establishment shall
abide by all applicable regulations of the State Department of Alcoholic Beverage
Control.
9. All owners, managers, and employees selling and serving alcohol shall comply with
all ABC guidelines and regulations and shall further take all measures necessary to
prevent over-service of alcohol and/or disorderly conduct from patrons. Increased
calls for Police Department service to the establishment or complaints made to the
City will cause a review of operations and may result in a revocation of this Permit.
10. The sale of alcohol “to go” to patrons that dine within the restaurant or expanded
outdoor patios shall be prohibited.
11. The establishment shall abide by all applicable Orange County Health Care Agency
requirements.
12. Establishments that provide food service, shall abide by the COVID-19 Industry
Guidance: Dine-In Restaurants provided by the California Department of Public
Health and Department of Industrial Health.
13. The permittee shall provide adequate trash receptacles within the permitted patio
shall and the operator shall provide for periodic and appropriate removal of trash,
litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet
of the premises.
Building
14. Any areas used for temporary commercial or institutional use shall be accessible to
disabled persons.
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a. An accessible path to all functional areas shall be provided.
b. Access to restrooms shall be provided at all times.
c. Accessible parking stalls shall not be used for seating areas when on-site
parking is provided.
d.Detectable warnings are required when pedestrian paths cross or are adjacent
to a vehicular way where no physical barrier are provided to separate the two.
15. Accessible seating at tables or counters shall provide knee clearance of at least
27 inches high, 30 inches wide, and 19 inches deep.
16. The tops of dining surfaces and work surfaces shall be 28 inches to 34 inches
above the finish floor.
17. All exiting paths shall be a minimum 36 inches free and clear. All public walks and
sidewalks shall be a minimum 48 inches free and clear.
Fire
18. All building exits shall remain free and clear of any obstacles that would impede
exiting from a building or suite and accessing the nearest public right-of-way.
19. All Fire Department devices (fire hydrants, fire department connections, water
valves, etc.) shall have a three-foot clearance in all directions.
20. Fire Department devices shall not be covered, blocked or otherwise hidden from
plain view.
Public Works
21. There shall be a minimum of 5 feet of space around all overhead facilities, such
as poles, and 15 feet of space around all underground facilities, such as vault
lids, manholes, vent pipes, pad-mounted transformers, etc.
22. Seating or structures below overhead conductors and/or under the ‘drip line’ shall
be prohibited.
23. Public eating/dining at tables shall not be situated on top of energized vault lids,
energized underground structures, or next to vent pipes, etc.
24. Expanded outdoor dining areas shall adhere to the SCE clearance decal
examples provided in Attachment No. CD 2.
Miscellaneous
25. The Community Development Director or designee may inspect the modified area at
any time during normal business hours.
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26. The Community Development Director may immediately revoke this permit if the
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 permit.
27. The Community Development Director may modify this Emergency Temporary Use
Permit. The Director shall notify the Applicant of any proposed modification and a
decision to modify this permit shall be deemed effective upon the posting of a notice
of modification at the site of the business granted the emergency temporary use
permit
28. This temporary authorization shall expire fourteen (14) days after the emergency
order established by Emergency Ordinance No. 2020-005 is terminated or repealed,
or 60 days from the date of authorization, whichever is sooner. The Director may
extend this approval for an additional 60 days for good cause.
29. Upon termination or repeal of Emergency Ordinance No. 2020-005, the Applicant
shall immediately work to remove the temporary improvements in a timely manner
and shall restore the expanded area back to its original use and improvements.
30. 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 this
Emergency Temporary Use Permit and Emergency Coastal Development Permit
for Shorebird. 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.
V. APPEAL
This decision may be appealed by the Applicant/permittee 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 and the City Manager's decision shall be final.
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On behalf of Seimone Jurjis, Community Development Director.
______________________________
David S. Lee, Associate Planner
BMZ/dl
Attachments: CD 1 Filed Application
CD 2 SCE Clearance Decals
CD 3 Site Plan Layout
Applicant and Permit Recipient Acknowledgement and Agreement
I hereby acknowledge that I have received a copy of this permit and that I have read and
understand the permit and all conditions. I hereby agree to operate the authorized use
consistent with this permit including the project description, approved site plan diagram,
findings, and conditions of approval. This is an approved and executed permit and it
constitutes a contract between the City and Permittee for all purposes.
Insert Applicant name and title
Signature Date
25
Attachment No. ZA 4
SCE Clearance Decals
26
SOUTHERN CALIFORNIA EDISON
TRANSMISSION AND DISTRIBUTION BUSINESS UNIT
Approved Decals
June 8, 2020
27
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Attachment No. ZA 5
Project Plans
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2220 Newport Boulevard #100 Newport Beach, California 92663REMOVE USE OF 350 SF OF INTERIOR DINING AREAS31