HomeMy WebLinkAbout20210520_CDD Action Letter 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: Sol Cocina Amendment No. 2 (PA2021-097)
▪ Emergency Temporary Use Permit No. UP2021-018
Site Location 251 East Coast Highway
Applicant FM Restaurants Signature OPCO LLC
Property Owner Russell Fluter
On May 20, 2021 the Community Development Director approved Emergency Temporary
Use Permit No. UP2021-018. This approval is based on the following findings and subject
to the following conditions.
I. SUMMARY OF PROPOSED MODIFIED OPERATION
The Applicant proposes to remove the two existing temporary outdoor dining areas
(approximately 500-square-feet within 4 parking spaces and approximately 2,100 square
feet within 10 parking areas) and replace with one approximately 870 square-foot deck
platform with outdoor dining within seven existing parking spaces adjacent the restaurant.
The outdoor dining requires the deck platform due to the existing slope of the parking lot.
The deck will include an accessible ramp, 11 tables (two accessible), heat lamps and
accessory LED lighting.
There is an existing outdoor dining patio authorized by Outdoor Dining Permit No. OD 49A.
Upon approval, ETUP No. UP2021-018 will supersede ETUP No. UP2020-138 and ECDP
No. CD2020-124.
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), respectively, 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. 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
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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 an
outdoor dining area of approximately 870-square-feet that meet these criteria. 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 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 permitted use must be operated in compliance with applicable State Department
of Alcoholic Beverage Control (ABC) requirements;
5. The plan includes temporarily displacing a total of seven parking spaces for the
temporary outdoor dining with appropriate delineation and temporary substantial
physical barriers or markers. Adequate parking remains available to serve the
restaurant on-site. This request is limited to City-owned and privately-owned parking
spaces, and/or parking stalls which are immediately adjacent to the commercial
business in areas that are already developed with ADA access improvements;
6. 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;
7. 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. The
authorized capacity of the establishment shall not be exceeded and all local public
health protocols shall be observed;
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8. The proposed operation does not extend any outdoor dining hours of operation
beyond those currently permitted by Use Permit No. UP0651 (no conditions) and
Outdoor Dining Permit OD No. 49A (12 a.m. for existing patio). The proposed outdoor
patios will close by 9 p.m., Monday through Thursday and 10 p.m., Friday through
Sunday;
9. The proposed operation is conditioned to be accessible to all persons, including
those with disabilities, in accordance with the Americans with Disabilities Act (ADA).
The parking space for ADA will remain clear and accessible for parking at all times;
10. The proposed operation does not contain ESHA, wetlands, or sandy beach area;
11. The proposed development will not result in the erection of any permanent structures
valued at more than $25,000.
12. This action meets the criteria for a waiver of permitting requirements under Section
30611. Coastal Development Permit Waiver Request No. 4 obviates the need for
emergency Coastal Development Permits (CDP’s) or for any required follow-up
CDP’s that would normally be required after issuance of emergency CDP’s, so long
as the development conforms with that described in the California Coastal
Commission letter dated August 21, 2020 and City Council Emergency Ordinance
2020-005.
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 dining area shall be in substantial conformance with the exhibit provided
in Attachment No. 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.
3. The proposed operation does not extend any hours of operation beyond those
currently permitted for the restaurant. The expanded outdoor dining patio shall close
by 9 p.m., Monday through Thursday and by 10 p.m., Friday through Sunday.
4. The use of amplified sound within the temporary area shall be prohibited.
5. The proposed outdoor dining areas shall not exceed 870 square feet in area. All
dining tables shall be separated from other dining tables and/or waiting areas by a
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minimum distance of seven (7) feet to ensure proper social distancing is
maintained.
6. Occupancy for all interior and outdoor areas shall not exceed maximum occupants
allowed by the latest issued certificate of occupancy at any time.
7. The previous two temporary outdoor dining areas and fence along East Coast
Highway shall be removed prior to installing the new proposed outdoor dining.
8. Tables within the expanded dining area shall be table-height (36 inches high
maximum) to maintain a family-friendly atmosphere.
9. 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 ABC.
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 as follows:
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 onsite
parking is provided.
d. Accessible seating at tables or counters shall provide knee clearance of at least
27 inches high, 30 inches wide and 19 inches deep.
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.
15. 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.
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16. All tops of dining and work surfaces shall be 28 inches to 34 inches above the
finish floor.
17. The accessible ramp must comply with Section 11B-405 of the California Building
Code.
18. Accessible routes, including under canopy(ies) must maintain a minimum clear
height of 80 inches.
19. A canopy (or any other combustible material) not allowed over the barbeque.
20. The canopies shall remain open in nature and at minimum include openings on
at least two complete sides.
21. All electrical distribution lines shall be in good working order and shall be
protected from pedestrian and vehicular traffic, accommodations for accessibility
shall be provided.
PUBLIC WORKS
22. A significant barricade (k-rail, water-filled barrier or other barrier approved by
the Public Works Department shall be provided between the proposed outdoor
dining areas and the drive aisles and parking stalls.
23. The dining areas, including the substantial barricade (k-rails), shall not obstruct the
existing drive aisle.
24. 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 poles and 15
feet of space around all underground facilities, such as vault lids, manholes, vent
pipes, pad-mounted transformers, etc.
25. Seating or structures below overhead conductors and/or under the ‘drip line’ shall
be prohibited.
26. Public eating/dining at tables shall not be situated on top of energized vault lids,
energized underground structures, or next to vent pipes, etc.
27. Expanded outdoor dining areas shall adhere to the SCE Clearance Decal
examples provided in Attachment No. CD No. 2.
FIRE
28. Fire lane(s) shall be identified on the plan.
29. Parking, displays, seating or other obstacles that interfere with emergency vehicles
and personnel shall not be permitted in fire lanes.
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30. Vehicles are permitted to stop in fire lanes awaiting service or delivery provided
that the driver remains inside the vehicle and the vehicle is ready to move
immediately upon orders from emergency personnel.
31. 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.
32. Fire department devices shall not be covered, blocked, or otherwise hidden from
plain view.
33. All heating appliances shall be placed the minimum distance from combustibles
according to manufactures recommendation. Manufactures specification and data
sheets shall be scanned to the plans. Plans shall indicate location and distance of
appliances. Only heating appliances approved on the plans shall be used. See
Portable Gas-Fired Heaters handout in Attachment CD 3.
34. Covered 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 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.
MISCELLANEOUS
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35. The Community Development Director or designee may inspect the modified area at
any time during normal business hours.
36. 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.
37. 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
38. 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.
39. 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.
40. 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 for Sol Cucina Amendment No. 3. 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
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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.
On behalf of Seimone Jurjis, Community Development Director,
Attachments: CD 1 Filed Application
CD 2 SCE Clearance Decal examples
CD 3 Portable Gas-Fired Heaters
CD 4 Site Plan Diagram
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.
Applicant Name and Title
Signature Date
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Attachment No. CD 1
Filed Application
Sol Newport Beach - Deck Specifications
•Frame up 20’ x 38’ platform with 42” railing around platform
•Install 6’ x 6’ post to hold up platform 2” off the ground
•Install ramp with railing
•Platform to be made with 2x10 1’ plywood
•Railing to be made with 2’ x 4”
•Install 4x4 post 10’ high
•Install LED lights to light up patio
o Lights would be strung from 10’ tall pressure treated wood posts at each corner
of the deck. Additional posts may be installed between the corners to ease the
tension as needed.
Attachment No. CD 2
SCE Clearance Decal examples
SOUTHERN CALIFORNIA EDISON
TRANSMISSION AND DISTRIBUTION BUSINESS UNIT
Approved Decals
June 8, 2020
D54
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Attachment No. CD 3
Portable Gas-Fired Heaters
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Attachment No. CD 4
Plans