HomeMy WebLinkAbout05_Sol Mexican Cocina Limited Term Permit and CDP_PA2021-196CITY OF NEWPORT BEACH
ZONING ADMINISTRATOR STAFF REPORT
December 16, 2021
Agenda Item No. 5
SUBJECT: Sol Mexican Cocina Temporary Outdoor Dining Patio (PA2021-196)
▪Limited Term Permit No. XP2021-025
▪Coastal Development Permit No. CD2021-049
SITE LOCATION: 251 East Coast Highway
APPLICANT: FM Restaurants Signature OPCO LLC
OWNER: Russell Fluter
PLANNER: Melinda Whelan, Assistant Planner
949-644-3221, mwhelan@newportbeachca.gov
LAND USE AND ZONING
•General Plan Land Use Plan Category: CM (Recreational and Marine Commercial)
•Zoning District: CM (Commercial Recreational and Marine)
•Coastal Land Use Plan Category: CM-A (Recreational and Marine Commercial –
0.0-0.30 FAR)
•Coastal Zoning District: CM (Commercial Recreational and Marine)
PROJECT SUMMARY
The applicant proposes to maintain an existing approximately 870-square-foot outdoor
dining patio deck with no late hours within seven existing parking spaces adjacent to the
restaurant. The deck was previously authorized through Emergency Temporary Use Permit
No. UP2021-018 (PA2021-097) for Sol Mexican Cocina Restaurant. The outdoor dining
area will not change.
RECOMMENDATION
1)Conduct a public hearing;
2)Find this project exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15301 and 15303 under Class 1 (Existing Facilities) and 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; and
3)Adopt Draft Zoning Administrator Resolution No. _ approving Limited Term Permit
No. XP2021-025 and Coastal Development Permit No. CD2021-049 (Attachment No. ZA
1).
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DISCUSSION
• The applicant proposes to maintain an existing outdoor dining area for up to a one-
year term that was previously authorized through Emergency Temporary Use Permit
No. UP2021-018 (PA2021-097) for Sol Mexican Cocina Restaurant. The area is
approximately 870-square-foot and utilizes a maximum of seven parking spaces. The
dining area is located on a deck platform due to the existing slope of the parking lot.
The deck includes an ADA accessible ramp, 11 tables (two accessible), heat lamps
and accessory LED lighting. There are no proposed changes.
• The temporary outdoor dining does not extend any hours of operation beyond those
currently permitted for the restaurant and is conditioned to close by 9 p.m., Monday
through Thursday and by 10 p.m., Friday through Sunday.
• There are no tents or canopies, and only existing umbrellas provide shade for the
dining area.
• With the existing outdoor dining deck occupying seven parking stalls, there are at
least 26 parking spaces remaining for the restaurant parking on the site. The existing
outdoor dining deck originally approved in May 2021, has not proven to create a
substantial impact to parking.
• There are no complaints on record regarding noise, parking or circulation with the
outdoor dining deck.
• 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 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
square feet in floor area or 10,000 square feet in floor area in urbanized areas zoned for
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such use. The proposed scope of work is to maintain a 870-square-foot expanded outdoor
dining patio at an existing restaurant for a one-year limited term 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:
This action shall become final and effective 14 days following the date the Resolution is
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 21 (Local Coastal Program
[LCP] 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
(Appeal to the Coastal Commission) of the City’s certified LCP and Title 14 California Code
of Regulations, Sections 13111 through 13120, and Section 30603 of the Coastal Act. For
additional information on filing an appeal, contact the Planning Division at 949-644-3200.
Prepared by:
MS/msw
Attachments: ZA 1 Draft Resolution
ZA 2 Vicinity Map
ZA 3 Emergency Temporary Use Permit Action Letter
ZA 4 SCE Clearance Decal Examples
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. XP2021-025 AND COASTAL
DEVELOPMENT PERMIT NO. CD2021-049 TO ALLOW A
TEMPORARY OUTDOOR DINING AREA LOCATED AT 251 EAST
COAST HIGHWAY (PA2021-196)
THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by FM Restaurants Signature OPCO LLC, owner of Sol Mexican
Cocina Restaurant, a property located at 251 East Coast Highway, and legally described
as Parcel 5 of Resubdivision 1003, requesting approval of a limited term permit and coastal
development permit.
2. The applicant requests to maintain an existing approximately 870-square-foot deck
platform with outdoor dining within seven existing parking spaces adjacent to the
restaurant. The outdoor dining deck was previously authorized through Emergency
Temporary Use Permit No. UP2021-018 (PA2021-097) for Sol Mexican Cocina
Restaurant.
3. The subject property is designated CM (Recreational and Marine Commercial) by the
General Plan Land Use Element and is located within the CM (Commercial Recreational
and Marine) Zoning District.
4. The subject property is located within the coastal zone. The Coastal Land Use Plan
category is Recreational and Marine Commercial (CM-A) – (0.0 to 0.30 FAR) and it is
located within the Commercial Recreational and Marine (CM) Coastal Zone District.
5. A public hearing was held on December 16, 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
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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 proposed scope of work is to maintain an 870-square-foot expanded
outdoor dining patio at an existing restaurant for a one-year limited term 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 the temporary outdoor dining deck for up to a one (1)-
year term while the City reconsiders its parking requirements related to food service uses.
The existing food service use is authorized through Use Permit No. UP0651 (no conditions)
and Outdoor Dining Permit No. OD0049A (12 a.m. for existing patio). The temporary
outdoor dining will close by 9 p.m., Monday through Thursday and 10 p.m., Friday through
Sunday.
2. The outdoor 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 2021 through an
Emergency Temporary Use Permit No. UP2021-018 (PA2021-097). The operation of the
expanded dining area is limited to up to a one (1)-year term and has been reviewed and
conditioned to preclude any detriment to the general welfare of the area.
3. Outdoor dining areas are common within the commercial neighborhoods along Coast
Highway. Sol Mexican Cocina has an existing permanent outdoor dining area approved by
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Outdoor Dining Permit No. OD0049A with late hours and the use has not proven
detrimental. The temporary outdoor dining patio deck does not extend any outdoor dining
hours of operation beyond those currently permitted by Use Permit No. UP0651 (no
conditions) and Outdoor Dining Permit No. OD0049A (12 a.m. for existing patio). The
temporary outdoor dining deck will maintain the hours of 9 p.m., Monday through Thursday
and by 10 p.m., Friday through Sunday.
4. The 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 temporary
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 0.49 acres in size and is relatively flat. The food service
use has operated since its original approval in 1960. Based upon the site plan, there is
adequate area to accommodate the temporary outdoor dining area without impacting
pedestrian circulation, parking and circulation. The outdoor area uses seven (7) parking
spaces with at least 26 parking spaces remaining for patrons.
2. The lot frontage is on East Coast Highway and the adjacent properties include Marina
parking and 333 Restaurant. The food service use has existed at this site since 1960. The
temporary outdoor dining use will not impede use and enjoyment of the properties in the
area and will instead add to the ambiance and character of the area.
3. The temporary outdoor dining area will not impede any drive aisles. No traffic or site
circulation issues have been documented since the temporary outdoor dining deck was
established in May 2021. The location of the outdoor dining deck has proven to be located
on the lot in an area with the least impact to the adjacent properties.
Finding:
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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;
Facts in Support of Finding:
1. The subject lot has a direct driveway approach taken from East Coast Highway and
Bayside Drive. The existing outdoor dining deck is located closest to the restaurant
entrance, adjacent to the Bay and will not impede access to the existing parling lot. There
have been no traffic issues documented and the existing location has proven to not cause
traffic issues.
2. The temporary outdoor dining will use seven (7) parking spaces. It will have barriers to
protect the area from the drive aisles and parking areas and will not encroach into the drive
aisles.
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
Fact in Support of Finding:
1. The temporary outdoor dining will use seven (7) parking spaces with appropriate
delineation and temporary substantial physical barricades. There are at least 26 parking
spaces remaining on-site to serve the restaurant patrons in addition to shared parking on
abutting lots.
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 and Zoning designation for this site is CM
(Recreational and Maine Commercial and Commercial Recreational and Marine,
respectively). The CM designation is intended to provide for areas appropriate for
commercial development on or near the waterfront that will encourage the continuation of
coastal-dependent and coastal-related uses, maintain the marine theme and character,
encourage mutually supportive businesses, encourage visitor-serving and recreational
uses, and encourage physical and visual access to the bay on sites located on or near the
bay. The temporary 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 CM designation
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2. The Limited Term Permit for the temporary outdoor dining would complement and be
consistent with the other commercial uses permitted within the Recreational and Marine
Commercial area in that it provides amenities that support the 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 from
the proposed amendment 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
visitors that enjoy the City’s diverse recreational amenities, and protect its important
environmental setting, resources, and quality of life.
Policy LU 2.4 Economic Development Accommodate uses that maintain or
enhance Newport Beach’s fiscal health and account for market demands, while
maintaining and improving the quality of life for current and future residents. (Imp
1.1, 24.1)
3. 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 Coast Highway.
4. 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.
Facts in Support of Finding:
1. The project site is located adjacent to a coastal view road, East Coast Highway. The site
is located approximately 760 feet east from a potential lateral access to the Bay as
identified by the Coastal Land Use Plan. However, the temporary outdoor dining deck is
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located within an existing restaurant site, adjacent to the restaurant building and setback
from the water on private property. The deck is low in height and does not include overhead
tents or canopies. The temporary outdoor dining area complies with all applicable Local
Coastal Program (LCP) development standards and maintains an area consistent with the
existing pattern of development along East Coast Highway and within this block of
commercial development and restaurants. 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 limited term permit to maintain the
existing outdoor dining deck requires 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 do not 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 location of these improvements does not pose
a conflict to coastal resources, coastal access, or other adverse environmental effects.
3. Improvements are complementary to the area; the subject restaurant and other
restaurants on Coast Highway have similar outdoor dining improvements.
4. Development authorized by this permit is not located in any environmentally sensitive
habitat area (ESHA) 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 subject property is located between the nearest public road and the sea along the Bay
adjacent the Coastal View Road, East Coast Highway. The existing property is developed
with a restaurant and outdoor dining. The additional temporary outdoor dining is located
on the private property adjacent the restaurant building and does not impede access to the
boat slips, piers, adjacent Marina or Bay. The temporary outdoor dining area is
approximately 155 feet east of the adjacent property at 201 East Coast Highway where
there is a marina, parking and access to the Bay. The temporary outdoor dining area does
not impede access to or impact parking or circulation at 201 East Coast Highway.
SECTION 4. DECISION.
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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. XP2021-025 and Coastal Development Permit No. CD2021-049 subject to the
conditions set forth in Exhibit A, which is attached hereto and incorporated by reference.
3. This 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 21 Local
Coastal Program (LCP) 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 (Appeal to the Coastal Commission) of the City’s
certified LCP and Title 14 California Code of Regulations, Sections 13111 through
13120, and Section 30603 of the Coastal Act.
PASSED, APPROVED, AND ADOPTED THIS 16TH DAY OF DECEMBER 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 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 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 Section 20.52.040.J (Extension of Limited Term Permit).
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 870 square feet.
4. The existing allowed hours of operation of the establishment shall not be extended. The
hours of operation of the temporary outdoor dining area as part of this approval shall not
extend beyond 9 p.m., Monday through Thursday and by 10 p.m., Friday through Sunday.
5. There shall be no use of amplified sound.
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 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.
11. The Community Development Director or designee may inspect the modified area at any
time during normal business hours.
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12. The project is subject to all applicable City ordinances, policies, and standards, unless
specifically waived or modified by the conditions of approval.
13. The applicant shall comply with all federal, state, and local laws. Material violation of
any of those laws in connection with the use may be cause for revocation of this
approval.
14. This Limited Term Permit and Coastal Development Permit may 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.
15. 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.
16. 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 Limited Term Permit No. XP2021-
025 and Coastal Development Permit No. CD2021-049 (PA2021-196) for Sol
Mexican Cocina 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
17. 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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18. All exiting paths shall be a minimum 48 inches free and clear. All public walks and
sidewalks shall be a minimum 48 inches free and clear.
19. Provide not less than 5 percent accessible seating at tables and counters with knee
clearance of at least 27 inches high, 30 inches wide, and 19 inches deep.
20. The tops of dining surfaces and work surfaces shall be 28 to 34 inches above the finish
floor.
21. All exiting paths shall be a minimum 48 inches free and clear. All public walks and
sidewalks shall be a minimum 48 inches free and clear.
22. 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.
23. Accessible routes, including under canopy(ies) and other overhead improvements shall
maintain a minimum clear height of 80 inches.
24. The accessible ramp must comply with Section 11B-405 of the California Building Code.
25. All electrical distribution lines shall be in good working order and shall be protected from
pedestrian and vehicular traffic and shall accommodate accessibility.
Public Works Department
26. 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.
27. The dining area and substantial barricades shall not encroach into the existing drive aisle.
28. 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.
29. Seating or structures below overhead conductors and/or under the ‘drip line’ shall be
prohibited.
30. Public eating/dining at tables shall not be situated on top of energized vault lids,
energized underground structures, or next to vent pipes, etc.
31. Outdoor dining areas shall adhere to the SCE Clearance Decal examples provided.
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Fire Department
32. Fire lane(s) shall be identified on the plan.
33. Parking, displays, seating or other obstacles that interfere with emergency vehicles and
personnel shall not be permitted in fire lanes.
34. 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.
35. All Fire Department devices (fire hydrants, fire department connections, water valves,
etc.) shall have a three (3)-foot clearance in all directions.
36. Fire Department devices shall not be covered, blocked or otherwise hidden from plain
view.
37. 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.
d. All heating equipment installations shall be approved for the Fire Code official.
38. Covered outdoor dining areas (separate or consolidated) shall comply with the following
standards for tents larger than 400 square feet (two [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
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Zoning Administrator Resolution No. ZA2021-###
Page 12 of 12
09-30-21
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 Marshal 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.
16
Attachment No. ZA 2
Vicinity Map
17
VICINITY MAP
Limited Term Permit No. XP2021-025 and
Coastal Development Permit No. CD2021-049
(PA2021-196)
251 East Coast Highway
Subject Property
18
Attachment No. ZA 3
Emergency Temporary Use Permit Action Letter
19
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
27
Attachment No. ZA 4
SCE Clearance Decal Examples
28
SOUTHERN CALIFORNIA EDISON
TRANSMISSION AND DISTRIBUTION BUSINESS UNIT
Approved Decals
June 8, 2020
29
30
D5431
Tmplt: 05/27/20
Attachment No. ZA 5
Project Plans
32
PA2021-19633
PA2021-19634