HomeMy WebLinkAbout11_Baja Sharkeez Limited Term Permit and CDP_PA2021-201CITY OF NEWPORT BEACH
ZONING ADMINISTRATOR STAFF REPORT
December 16, 2021
Agenda Item No. 11
SUBJECT: Baja Sharkeez (PA2021-201)
▪Limited Term Permit No. XP2021-022
▪Coastal Development Permit No. CD2021-047
SITE LOCATION: 114 Mc Fadden Place
APPLICANT: Baja Sharkeez
OWNER: Vince and Michael Fazzi
PLANNER: Liz Westmoreland, Associate Planner
949-644-3234, lwestmoreland@newportbeachca.gov
LAND USE AND ZONING
•General Plan Land Use Plan Category: Mixed-Use Water 2 (MU-W2)
•Zoning District: Mixed-Use Water (MU-W2)
•Coastal Land Use Plan Category: Mixed-Use Water Related (MU-W)
•Coastal Zoning District: Mixed-Use Water (MU-W2)
PROJECT SUMMARY
A request for a limited term and coastal development permit to allow a 900-square-foot
maximum expanded 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. UP2020-155 (PA2020-269) for Baja Sharkeez.
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. XP2021-022 and Coastal Development Permit No. CD2021-047 (Attachment No.
ZA 1).
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DISCUSSION
•A request for a limited term and coastal development permit to allow a 900-square-
foot maximum expanded dining area for up to a one-year term (January 1, 2022
through December 31, 2022). A larger expanded dining area was previously
authorized through Emergency Temporary Use Permit (ETUP) No. UP2020-155
(PA2020-269) for Baja Sharkeez.
•The expanded patio area is located in the parking lot at the rear of the subject
building. The patio has been significantly reduced in scale from the patio that was
authorized under ETUP No. UP2020-155, from approximately 2,400 square feet to
900 square feet. Under the ETUP No. UP2020-155 approval, only the accessible
stall (one parking space) was maintained as available for parking. Under the
proposed project, the expanded dining area will occupy five standard parking spaces
and the existing striped accessible space will remain in its approved location. The
project will provide access to five parking stalls. To date, no complaints regarding the
availability of parking have been received.
•The expanded patio area would be required to close at 9:00 p.m. on weekdays
(Sunday to Thursday) and 10:00 p.m. on weekends (Friday and Saturday) which
would reduce impacts related to nighttime noise emanating from the patio area.
•The City is 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.
•The expanded dining area will not impede pedestrian coastal access since the
proposed patio would be located entirely within private property and is not directly
adjacent to the water or beach. Access to the beach is provided in front of the
restaurant along the Mc Fadden Place sidewalk.
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
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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 900-square-foot expanded outdoor
dining patio at an existing restaurant for a up to 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:
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:
law
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. XP2021-022 AND COASTAL
DEVELOPMENT PERMIT NO. CD2021-047 TO ALLOW AN
EXPANDED OUTDOOR DINING AREA LOCATED AT 114 MC
FADDEN PLACE (PA2021-201)
THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Baja Sharkeez with respect to property located at 114 Mc
Fadden Place, and legally described as Parcel 1 of Resubdivision No. 493 in the City of
Newport Beach, Orange County, California, requesting approval of a limited term permit
and a coastal development permit.
2. A request for a limited term and coastal development permit to allow a 900-square-foot
maximum expanded dining area for up to a one (1)-year term (January 1, 2022 through
December 31, 2022). An expanded dining area was previously authorized through
Emergency Temporary Use Permit (ETUP) No. UP2020-155 (PA2020-269) for Baja
Sharkeez.
3. The subject property is designated Mixed-Use Water 2 (MU-W2) by the General Plan Land
Use Element and is located within the Mixed-Use Water (MU-W2) Zoning District.
4. The subject property is located within the coastal zone. The Coastal Land Use Plan
category is Mixed-Use Water Related (MU-W) and it is located within the Mixed-Use Water
(MU-W2) Coastal Zoning 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
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 900-square-foot expanded outdoor
dining patio at an existing restaurant for up to a one (1)-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 an extended and expanded outdoor dining patio 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. UP2017-
034 (PA2017-255) and includes approximately 1,813 square feet of net public area with a
203-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 January 1, 2022, through December 31, 2022,
and has been reviewed and conditioned to preclude any detriment to the general welfare
of the area.
3.Outdoor dining areas are common on the Newport Peninsula and Mc Fadden Square and
have been used at the subject property during similar hours in the past. The existing patio
use has not proven detrimental. Generally, the existing hours of operation for the restaurant
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are 9:00 a.m. through 1:30 a.m., daily (a portion of the space closes at 11:00 p.m.). The
expanded outdoor dining area would close by 9:00 p.m., Monday through Thursday, and
by 10:00 p.m., Friday through Sunday, as required by Condition of Approval No. 4.
Therefore, no late hours are proposed for the expanded outdoor patio.
4. A condition of approval related to heaters is incorporated as Condition of Approval No. 27.
If the proposed dining area is revised to include a tent or cover, the applicant must comply
with the fire requirements outlined in Condition of Approval No. 28.
5. The proposed operation is conditioned to be accessible to all persons, including those with
disabilities, in accordance with the Americans with Disabilities Act (ADA).
6. 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.
7. The permitted use must be operated in compliance with applicable State Department of
Alcoholic Beverage Control (ABC) requirements.
8. The overall plan includes appropriate delineation of outdoor use spaces with physical
barriers or markers.
9. The expanded dining area will not impede pedestrian coastal access since the proposed
patio would be located entirely within private property and is not directly adjacent to the
water or beach. Access to the beach is provided in front of the restaurant along the Mc
Fadden Place sidewalk.
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 0.18 acre in size and is relatively flat. The existing space
has operated as a food service use at this location since the 1970s. 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 Mc Fadden Place to the northwest with the Mc Fadden Square
parking lot and restaurants located across the street. To the south and southeast are
residentially zoned properties. Many existing food service uses with outdoor dining and
retail tenants are located throughout the Mc Fadden Square area. The expanded outdoor
dining use will not impede use and enjoyment of the properties in the area and will instead
add to the ambiance and vibrant character of Mc Fadden Square.
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3.The expanded patio area is located in the parking lot at the rear of the subject building. The
patio has been significantly reduced in scale from the patio that was authorized under ETUP
No. UP2020-155, from approximately 2,400 square feet to 900 square feet. Under the
ETUP No. UP2020-155 approval, only the accessible stall (one [1] parking space) was
maintained as available for parking. Under the proposed project, the expanded dining area
will occupy five (5) standard parking spaces and the existing striped accessible space will
remain in its approved location. The project will provide access to five (5) parking stalls.
4.In order to reduce the number of vehicles driving or maneuvering near the patio, one (1)
lane of parking has been allocated to the patio with the available parking area located
across the drive aisle separate from the patio. The Public Works Department has reviewed
the design and determined it is acceptable on a limited term basis (one [1] year). Based on
the proposed configuration, no traffic or site circulation issues are anticipated.
6.The location of the patio has been pulled back from the property line and the five (5) parking
spaces would provide an additional buffer from the patio to the residential uses. The City
has not received any complaints regarding the location or use of this patio.
7.The expanded patio area would be required to close at 9:00 p.m. on weekdays (Sunday to
Thursday) and 10:00 p.m. on weekends (Friday and Saturday) which would reduce impacts
related to nighttime noise emanating from the patio area.
8.The proposed parking configuration allows for access to the accessible stall and the
adjacent alley, street, and sidewalk without impediment.
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;
Facts in Support of Finding:
1.The subject lot is accessed from West Balboa Boulevard and Mc Fadden Place. A surface
parking area is provided on-site with 10 parking spaces. The expanded dining area will
occupy no more than five (5) standard parking spaces (one row of parking stalls). The
existing food service use, Baja Sharkeez, is located in a commercial plaza and proposes
to operate all day and into the evening hours with peak hours when other retail and office
uses near the property are typically not operating. Sufficient parking is provided on-site
and within the public parking lot and no traffic issues are anticipated with the continued use
of the expanded dining area.
2.The City is 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.
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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 (Baja Sharkeez) has operated at the
subject property since the 1990s, and the property has been used for food service uses
since the 1970s. The existing surface parking lot has historically served as the employee
parking supply with patrons parking in the public lot adjacent to the site or using alternative
methods of transportation (rideshare, bike, walking). The surface lot is expected to
adequately accommodate the temporary use for up to a one (1)-year term. The applicant
has continued to pay in-lieu parking fees to support the City’s public parking lot and would
continue to do so through the duration of the project.
2. The expanded dining area will not impede pedestrian access to the waterfront as there is
adequate access via the sidewalk along the front of the building.
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) and
the Coastal Land Use Plan designation is MU-W (Mixed-Use Water Related). The MU-
W2/MU-W designations are intended to provide for waterfront properties in which marine-
related uses may be intermixed with general commercial, visitor-serving commercial and
residential dwelling units 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.
Outdoor dining is a use that tends to foster additional pedestrian and visitor activity.
2. The site is located in the MU-W2 (Mixed Use Water) Zoning District and Coastal Zoning
District. The MU-W2 designation is intended to provide for waterfront locations in which
marine-related uses may be intermixed with buildings that provide residential on the upper
floors. The MU-2 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 MU-W2 Zoning District of
Mc Fadden Square 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,
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consistent with General Plan Land Use Element Goal LU 2, 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
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)
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 Peninsula.
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.
Facts in Support of Finding:
1. The project site is not located adjacent to a coastal view road or coastal viewpoint as
identified in the Coastal Land Use Plan. The nearest coastal viewpoint is on the end of the
Newport Pier and not visible from the site due to distance and an intervening building that
obstructs views. The proposed patio area is located within the existing on-site parking lot
at the rear of the site. Establishing a vibrant outdoor dining patio could improve the
aesthetics of the site by providing a more active use than parking. The existing building
would not be modified as part of this limited term application. The expanded outdoor dining
area complies with all applicable Local Coastal Program (LCP) development standards
and maintains an area consistent with the existing pattern of development in Mc Fadden
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Square. Additionally, the project does not contain any unique features that could degrade
the visual quality of the coastal zone.
2. The project is located adjacent to Mc Fadden Square which is accessible to the public and
provides opportunities to view and access the beach as well as other amenities. As
currently developed, the existing restaurant building and other business are located within
the viewshed of the beach and shoreline. However, the outdoor patio is not likely to be
visible from the beach due to its location behind the existing restaurant. Further, the project
maintains an envelope consistent with the existing neighborhood pattern of development.
3. 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 is considered a minor detached structure.
The location of these improvements does not pose a conflict to coastal resources,
coastal access, or other adverse environmental effects.
4. Improvements are complementary to the area; the subject restaurant and adjacent
neighbors have similar outdoor dining improvements within the walkways and parking
areas of Mc Fadden Square.
5. The proposed outdoor dining area would be located completely within private property.
6. 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.
7. Development authorized is not located in an area in which the California Coastal
Commission retains direct permit review authority.
8. The proposed development will not result in the erection of any permanent structures
valued at more than $25,000.
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.
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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
between the requirement and the project’s impact and be proportional to the impact. In this
case, the project is a temporary outdoor patio that is located within the on-site parking lot.
The project is designed and sited so as not to block or impede existing public access
opportunities. The additional patio area would serve as an amenity to residents and visitors
in the area.
2. Vertical access to the beach is available adjacent to the project within the Mc Fadden
Place plaza and Newport Pier. Lateral access is available to the beach to the west of
the site. The public beach is also the start of a 6-foot-wide public sidewalk providing
lateral access and views of the ocean. The project does not include any features that
would obstruct access along these routes.
3. The existing 10-space parking lot is primarily used by employees of Baja Sharkeez. The
reduction in parking of five (5) spaces on a temporary basis would not create a
substantial impediment to public access and parking opportunities in the Coastal Zone.
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. XP2021-022 and Coastal Development Permit No. CD2021-047 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 City’s certified LCP and Title 14 California Code of
Regulations, Sections 13111 through 13120, and Section 30603 of the Coastal Act.
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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, floor
plans and building elevations 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 for up to a one (1)-year term January 1, 2022, to December 31, 2022. The
applicant shall be required to cease all permitted operations and remove any temporary
improvements made to the outdoor spaces as part of this Limited Term Permit on or before
December 31, 2022.
3. The expanded dining area shall not exceed 900 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
9 p.m., Monday through Thursday, and will close by 10:00 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. 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 form 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.
9. The sale of alcohol “to go” to patrons that dine within the expanded outdoor patios shall be
prohibited.
10. The establishment shall abide by all applicable Orange County Health Care Agency
requirements.
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11. 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.
12. The Community Development Director or designee may inspect the modified area at any
time during normal business hours.
13. The project is subject to all applicable City ordinances, policies, and standards, unless
specifically waived or modified by the conditions of approval.
14. 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.
15. 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.
16. 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.
17. 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-
022 and Coastal Development Permit No. CD2021-047 (PA2021-201) for Baja
Sharkeez. 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
18. 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.
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09-30-21
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).
19. 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.
20. All tops of dining and work surfaces shall be 28 to 34 inches above the finish floor.
Fire Department
21. Fire lane(s) shall be identified on the plan.
22. Parking, displays, seating or other obstacles that interfere with emergency vehicles and
personnel shall not be permitted in fire lanes.
23. 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.
24. All Fire Department devices (fire hydrants, fire department connections, water valves,
etc.) shall have a 3-foot clearance in all directions.
25. Fire Department devices shall not be covered, blocked or otherwise hidden from plain
view.
26. 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.
27. 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.
28. 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.
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• 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 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.
Public Works Department
29. The Applicant shall install and maintain a substantial physical barrier (water-filled traffic
barrier or K-rail between any area used and adjacent to any street, driveway, or parking
area).
30. 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.
31. Seating or structures below overhead conductors and/or under the ‘drip line’ shall be
prohibited.
32. Public eating/dining at tables shall not be situated on top of energized vault lids, energized
underground structures, or next to vent pipes, etc.
33. Expanded outdoor dining areas shall adhere to the SCE clearance decal examples
provided.
17
Attachment No. ZA 2
Vicinity Map
18
VICINITY MAP
Limited Term Permit No. XP2021-022 and
Coastal Development Permit No. CD2021-047
(PA2021-201)
114 Mc Fadden Place
Subject Property
19
Attachment No. ZA 3
Emergency Temporary Use Permit Action Letter
20
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: Baja Sharkeez Amendment (PA2020-269)
▪ Emergency Temporary Use Permit No. UP2020-155
Site Location 114 McFadden Place
Applicant Newport Sharkeez, Inc.
Property Owner Michael Fazzi
On September 17, 2020 the Community Development Director approved an amendment
to Emergency Temporary Use Permit No. UP2020-017 and Emergency Coastal
Development Permit No. CD2020-033. This approval is based on the following findings and
subject to the following conditions.
I. SUMMARY OF PROPOSED MODIFIED OPERATION
The Applicant proposes to modify operations for the existing Baja Sharkeez restaurant to
ensure the safety of its employees and patrons, as described in Attachment No. CD 2. The
modified operations are summarized as follows:
1. Temporary closure of the entire on-site parking area with barricades to allow a
temporary outdoor dining area. A minimum entrance of four (4) feet in width will be
provided to the temporary dining area. All tables will be placed such that they are at
least seven (7) feet apart.
2. Alcohol will be served on the temporary expanded area, subject to compliance with
all California Department of Alcoholic Beverage Control (ABC) requirements and
limitations.
3. Total combined occupant load for indoor and temporary outdoor use areas will not
exceed the currently allowed maximum occupant load.
4. The requested change is to allow a later closing hour of 10 p.m. on Friday, Saturday
and Sunday.
Upon issuance and acknowledgement, Emergency Temporary Use Permit No. UP2020-
017 and Emergency Coastal Development Permit No. CD2020-033 shall be considered
superseded and rendered null-and-void.
DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C
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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
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 permitted project meets
these criteria and 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.
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 appropriate delineation of outdoor use spaces with temporary
physical barriers or markers.
6. The proposed operation is conditioned to be accessible to all persons, including
those with disabilities, in accordance with the Americans with Disabilities Act (ADA).
DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C
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7. This Emergency Temporary Use Permit does not extend the allowed hours and days
of operation beyond those currently permitted by any applicable City- or County-
issued discretionary permit.
8. The proposed operation is necessary to provide adequate space to allow for
appropriate social distancing to prevent further spread of COVID-19. The proposed
site plan or use diagram provides adequate areas for patrons to practice social
distancing to reduce the likelihood of spreading COVID-19.
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).
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 removes the need for
emergency Coastal Development Permits (CDPs) or for any required follow-up CDPs
that would normally be required after issuance of emergency CDPs, 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.
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 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. If the proposed operation is using any portion of the public right-of-way, the Applicant
shall obtain and maintain liability insurance for not less than $1,000,000 per
occurrence and as specified by the City’s Risk Manager. All liability insurance
policies shall specifically include the City, the City Council, its employees, and agents
as additional insureds and shall be issued by an agent or representative of an
insurance company licensed to do business in the State of California, which has one
of the three highest or best ratings from the Alfred M. Best company. All insurance
policies shall contain an endorsement obligating the insurance company to furnish
the Community Development Director with at least thirty (30) days written notice in
advance of the cancellation of the policy.
DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C
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4. The existing allowed hours of operation of the establishment shall not be extended.
The hours of operation of the area modified as part of this Emergency Temporary
Use Permit shall not extend beyond 9 p.m. on Monday through Thursday or 10 p.m.
on Friday, Saturday and Sunday. All operations shall cease by the identified hours.
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 substantial physical barrier between any
area used and adjacent to any street, driveway or parking area.
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.
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 area shall be provided.
b. Access to restrooms shall be provided at all times.
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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 tops of dining and work surfaces shall be 28 inches to 34 inches above the
finish floor.
16. 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.
17. Fire lane(s) shall be identified on the plan.
18. Parking, displays, seating or other obstacles that interfere with emergency vehicles
and personnel shall not be permitted in fire lanes.
19. 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.
20. All Fire Department devices (fire hydrants, fire department connections, water
valves, etc.) shall have a three-foot clearance in all directions.
21. Fire Department devices shall not be covered, blocked or otherwise hidden from
plain view.
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. The Community Development Director or designee may inspect the modified area at
any time during normal business hours.
24. 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.
25. 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
DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C
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26. 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.
27. 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.
28. 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/Coastal Development Permit. This
indemnification shall include, but not be limited to, damages awarded against the
City, if any, costs of suit, attorneys' fees, and other expenses incurred in
connection with such claim, action, 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.
On behalf of Seimone Jurjis, Community Development Director,
______________________________
Benjamin M. Zdeba, AICP
Senior Planner
Attachments: CD 1 Filed Application
CD 2 Written Project Description
CD 3 Site Plan Diagram
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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
DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C
Gm
9/17/2020
Eric Levit
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Attachment No. CD 1
Filed Application
DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C
28
PA2020-269DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C
29
Attachment No. CD 2
Written Project Description
DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C
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PA2020-088
Project Description
Measures for reduced spread of COVID
• Social distancing of 7ft
• Masks for all staff
• Gloves for staff handling any food or disposing of food and trash
• Individual wrap disposable utensils
• Disposable drinkware
• Hand sanitizer stations
• Signage explaining all procedures
• Temperature checks of employees at beginning and end of shifts
• Temperature checks of guests at door
Alcoholic drinks will be served on patio and ABC permit has been submitted
Signage explaining exits and entrances remaining the same through the front door
Site and Seating diagram (attached)
Estimated space used 2000 square feet
Over 7ft between tables
DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C
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Attachment No. CD 3
Site Plan Diagram
DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C
32
DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C
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Attachment No. ZA 4
SCE Clearance Decals
34
SOUTHERN CALIFORNIA EDISON
TRANSMISSION AND DISTRIBUTION BUSINESS UNIT
Approved Decals
June 8, 2020
35
36
D5437
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Attachment No. ZA 5
Project Plans
38
39