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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). 1 Baja Sharkeez (PA2021-201) Zoning Administrator, December 16, 2021 Page 2 Tmplt: 05/27/20 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 2 Baja Sharkeez (PA2021-201) Zoning Administrator, December 16, 2021 Page 3 Tmplt: 05/27/20 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 3 Attachment No. ZA 1 Draft Resolution 4 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 5 Zoning Administrator Resolution No. ZA2021-### Page 2 of 13 09-30-21 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 6 Zoning Administrator Resolution No. ZA2021-### Page 3 of 13 09-30-21 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. 7 Zoning Administrator Resolution No. ZA2021-### Page 4 of 13 09-30-21 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. 8 Zoning Administrator Resolution No. ZA2021-### Page 5 of 13 09-30-21 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, 9 Zoning Administrator Resolution No. ZA2021-### Page 6 of 13 09-30-21 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 10 Zoning Administrator Resolution No. ZA2021-### Page 7 of 13 09-30-21 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. 11 Zoning Administrator Resolution No. ZA2021-### Page 8 of 13 09-30-21 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. 12 Zoning Administrator Resolution No. ZA2021-### Page 9 of 13 09-30-21 PASSED, APPROVED, AND ADOPTED THIS 16TH DAY OF DECEMBER, 2021. ____________________________ Jaime Murillo, Zoning Administrator 13 Zoning Administrator Resolution No. ZA2021-### Page 10 of 13 09-30-21 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. 14 Zoning Administrator Resolution No. ZA2021-### Page 11 of 13 09-30-21 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. 15 Zoning Administrator Resolution No. ZA2021-### Page 12 of 13 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. 16 Zoning Administrator Resolution No. ZA2021-### Page 13 of 13 09-30-21 • 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 21 Baja Sharkeez Amendment (PA2020-269) September 17, 2020 Page 2 Tmplt: 05/22/2020 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 22 Baja Sharkeez Amendment (PA2020-269) September 17, 2020 Page 3 Tmplt: 05/22/2020 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 23 Baja Sharkeez Amendment (PA2020-269) September 17, 2020 Page 4 Tmplt: 05/22/2020 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. DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C 24 Baja Sharkeez Amendment (PA2020-269) September 17, 2020 Page 5 Tmplt: 05/22/2020 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 25 Baja Sharkeez Amendment (PA2020-269) September 17, 2020 Page 6 Tmplt: 05/22/2020 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 DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C 26 Baja Sharkeez Amendment (PA2020-269) September 17, 2020 Page 7 Tmplt: 05/22/2020 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 27 Baja Sharkeez Amendment (PA2020-269) September 17, 2020 Page 8 Tmplt: 05/22/2020 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 30 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 31 Baja Sharkeez Amendment (PA2020-269) September 17, 2020 Page 2 Tmplt: 05/22/2020 Attachment No. CD 3 Site Plan Diagram DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C 32 DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C 33 Attachment No. ZA 4 SCE Clearance Decals 34 SOUTHERN CALIFORNIA EDISON TRANSMISSION AND DISTRIBUTION BUSINESS UNIT Approved Decals June 8, 2020 35 36 D5437 Tmplt: 05/27/20 Attachment No. ZA 5 Project Plans 38 39