HomeMy WebLinkAboutZA2021-082 - APPROVING LIMITED TERM PERMIT NO. XP2021-010 AND COASTAL DEVELOPMENT PERMIT NO. CD2021-039 TO ALLOW A TEMPORARY EXPANDED OUTDOOR DINING AREA LOCATED AT 417 30TH STREET (PA2021-188)RESOLUTION NO. ZA2021-082
A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE
CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING
LIMITED TERM PERMIT NO. XP2021-010 AND COASTAL
DEVELOPMENT PERMIT NO. CD2021-039 TO ALLOW A
TEMPORARILY EXPANDED OUTDOOR DINING AREA
LOCATED AT 417 30TH STREET (PA2021-188)
THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by DSH Industries, LLC dba ARC Butcher & Baker (Applicant),
with respect to property located at 417 30th Street, and legally described as Parcel No. 1
of Lot Line Adjustment No. 94-8, requesting approval of a limited term permit and a coastal
development permit.
2. A request to allow a maximum 550-square-feet expanded dining area for up to a one (1)-
year term (January 1, 2022, through December 31, 2022). The expanded dining area was
previously authorized through Emergency Temporary Use Permit Nos. UP2020-013
(PA2020-081) and UP2020-179 (PA2020-334).
3. The subject property is categorized MU-H4 (Mixed-Use Horizontal) by the General Plan
Land Use Element and is located within the MU-CV/15TH ST (Mixed-Use Cannery Village
and 15th Street) Zoning District.
4. The subject property is located within the coastal zone. The Coastal Land Use Plan
category is MU-H (Mixed-Use Horizontal), and it is located within the MU-CV/15TH ST
(Mixed-Use Cannery Village and 15th Street) 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 scope of work is a maximum 550-square-foot expanded outdoor dining patio
at an existing establishment for up to a one (1)-year limited term (January 1, 2022, through
December 31, 2022) and qualifies under the parameters of the Class 1 and Class 3
exemptions.
3. The exceptions to the Class 3 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 NBMC, the following
findings and facts in support of such findings are set forth:
Finding:
A. The operation of the limited duration use at the location proposed and within the time period
specified would not be detrimental to the harmonious and orderly growth of the City, nor
endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health,
interest, safety, or general welfare of persons residing or working in the neighborhood of
the requested limited duration use;
Facts in Support of Finding:
1. The limited term permit will allow an extended and expanded outdoor dining patio for up to
a one (1)-year term (January 1, 2022, through December 31, 2022) while the City
reconsiders its parking requirements related to food service uses. The existing food service
use is authorized through Minor Use Permit No. UP2019-026 (PA2019-105) and includes
298 square feet of interior net public area with no authorization for permanent outdoor
dining.
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. A resident has filed complaints regarding operating
outside of authorized hours and excessive noise. If founded, those complaints have been
addressed through enforcement measures outlined in the NBMC, as they are received by
the Code Enforcement Division. The operation of the expanded dining area is limited to up
to a one (1)-year beginning January 1, 2022 and has been reviewed and conditioned to
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help preclude any detriment to the general welfare of the area. The Code Enforcement
Division will continue to ensure all conditions of approval are abided by.
3. Restaurants and outdoor dining areas are common on the Balboa Peninsula. Specifically
in this location, the Cannery Village/15th Street neighborhood is zoned for mixed-use
development, which places nonresidential and residential uses in proximity to each other.
Nonresidential activity is expected and encouraged by the General Plan, Coastal Land Use
Plan and NBMC. The allowed hours of operation for the restaurant are 7 a.m. through 10
p.m., daily. To help ensure harmony with the nearby residential uses, the temporary
outdoor dining area will have more limited hours closing by 9 p.m., Monday through
Thursday, and by 10 p.m. Friday through Sunday.
4. The proposed operation is conditioned to be accessible to all persons, including those with
disabilities, in accordance with the Americans with Disabilities Act (ADA).
5. The permitted use shall adhere to applicable State of California and Orange County Health
Care Agency guidelines for the safe operation of the use. It is the responsibility of the
permittee to implement and follow industry-specific guidance of the State of California and
the Orange County Health Care Agency guidelines.
6. The permitted use must be operated in compliance with applicable State Department of
Alcoholic Beverage Control (ABC) requirements.
7. The plan includes appropriate delineation of outdoor use spaces with physical barriers or
markers.
Finding:
B. The subject lot is adequate in size and shape to accommodate the limited duration use
without material detriment to the use and enjoyment of other properties located adjacent
to and in the vicinity of the lot;
Facts in Support of Finding:
1. The subject lot is 4,186 square feet and is developed with a 1,980 square-foot, single-
story, single-tenant commercial building, along with eight (8) off-street parking spaces.
Prior to the existing food service use, the tenant space was occupied by a take-out service,
limited use. The temporarily expanded parking area takes up three (3) parking spaces at
the front on 30th Street, leaving a single ADA accessible parking space. 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 30th Street to the south, an alley to the north, a commercial use to
the west and a mixed-use structure to the east. Existing food service uses with outdoor
dining are located nearby and are intermixed with other nonresidential and residential
uses. As conditioned, the temporarily expanded outdoor dining area will not impede use
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and enjoyment of other properties in the mixed-use neighborhood, and it is expected to
continue to add to the ambiance and character of the Balboa Peninsula area.
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 30th Street and an alley. There are five (5) parking spaces
available to serve the restaurant in addition to bicycle racks for those riding bicycles to the
restaurant. Sufficient parking is provided on-site and no traffic issues are anticipated with
the continued temporary use of the expanded dining area.
2. The City is also undergoing an analysis of parking rates, including rates related to food
service and outdoor dining. Initial findings and recommendations of this study were
presented at a City Council study session on November 30, 2021. Preliminarily, the study
found that food service parking requirements should be lowered and that rideshare service
drop-off/pick-up areas or alternative modes of transportation should be considered. This
information will ultimately inform future revisions to the Zoning Code, which may support
future use permit amendments for permanent outdoor dining areas.
Finding:
D. Adequate temporary parking to accommodate vehicular traffic to be generated by the
limited duration use would be available either on-site or at alternate locations acceptable
to the Zoning Administrator; and
Facts in Support of Finding:
1. The existing food service use has operated at the subject property since 2019, and the
temporarily expanded outdoor dining area has been in operation since 2020. There have
been no complaints about lack of parking in the area, which is developed with a mixture of
residential and nonresidential uses. This type of development and its adjacency to the
harbor and other coastal resources tend to serve as a shared-trip parking supply wherein
people are parking once and visiting multiple locations. The parking is expected to
adequately accommodate the temporary use for up to a one (1)-year term (January 1,
2022 through December 31, 2022).
2. The temporarily expanded dining area will not impede pedestrian access along the
sidewalk.
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.
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Facts in Support of Finding:
1. The General Plan land use category for this site is MU-H4 (Mixed-Use Horizontal). The
MU-H4 category is applied to properties where it is the intent to establish the character of
a distinct and cohesively developed district or neighborhood containing multi-family
residential with clusters of mixed-use and/or commercial buildings in such locations as the
interior parcels of Cannery Village and 15th Street. The subject lot is in line with the block
and is not on a corner. The expanded outdoor dining use is accessory to the existing food
service use, will be utilized for a limited duration on-site, and will not impede use of the site
consistent with the MU-H4 category.
2. The site is in the MU-CV/15TH ST (Mixed-Use Cannery Village/15th Street) Zoning
District. The MU-CV/15TH ST designation applies to areas where it is the intent to
establish a cohesively developed district or neighborhood containing multi-unit
residential dwelling units with clusters of mixed-use and/or commercial structures on
interior lots of Cannery Village and 15th Street. Allowed uses may include multi-unit
dwelling units; nonresidential uses; and/or mixed-use structures, where the ground floor
is restricted to nonresidential uses along the street frontage. Residential uses and
overnight accommodations are allowed above the ground floor and to the rear of uses
along the street frontage. Mixed-use or nonresidential structures are required on lots at
street intersections and are allowed, but not required, on other lots. The MU-CV/15TH
ST 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 temporarily expanded outdoor dining would complement and
be consistent with the other commercial uses permitted within the Balboa Peninsula area
in that it provides amenities that support visitors to the area and provides a social gathering
place for those who live and work in the neighborhood, consistent with General Plan Land
Use Element Goal 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
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recognizes the need to provide effective and efficient structures for implementing economic
programs, utilizing staffing to provide healthy, thriving businesses, and maintain a healthy
economy while preserving the unique commercial villages in Newport Beach. The
proposed limited term permit would support a local business and economic prosperity while
maintaining the unique character of the Balboa Peninsula community.
5. The site is not located within a specific plan area.
Coastal Development Permit
In accordance with Section 21.52.015 (Coastal Development Permits, Findings and Decision)
of the NBMC, the following findings and facts in support of such findings are set forth:
Finding:
F. Conforms to all applicable sections of the certified Local Coastal Program.
Facts in Support of Finding:
1. The project site is not located adjacent to a coastal view road, public access way, or
Coastal Viewpoint as identified in the Coastal Land Use Plan. The nearest coastal
viewpoints are on Lido Park Drive and at Lido Park, which are at least 775 feet east from
the project site. The expanded outdoor dining tables comply with all applicable Local
Coastal Program (LCP) development standards and maintains an area consistent with the
existing pattern of development in the Balboa Peninsula. Additionally, the project does not
contain any unique features that could degrade the visual quality of the coastal zone.
2. The property is located in the coastal zone and the proposed improvements require a
coastal development permit in accordance with Newport Beach Municipal Code (NBMC)
Section 21.52.035(C)(2) (Projects Exempt from Coastal Development Permit
Requirements). The improvements constitute an increase of ten (10) percent or more of
the internal floor area of an existing structure or a lesser improvement that has
previously been undertaken pursuant to California Public Resources Code Section
30610(a). The expanded outdoor dining area and barrier within the public walkway are
minor detached structures. The location of these improvements does not pose a conflict
to coastal resources, coastal access, or other adverse environmental effects.
3. Development authorized by this permit is not located in any environmentally sensitive
habitat (ESHA) area and public access to the coast will not be blocked. Coastal access
is increased by allowing commercial establishments to re-open allowing public to visit
coastal areas and provides an added amenity for visitors. The proposed operation does
not contain ESHA, wetlands, or sandy beach area.
4. Development authorized is not located in an area in which the California Coastal
Commission retains direct permit review authority.
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Finding:
G. Conforms with the public access and public recreation policies of Chapter 3 of the
Coastal Act if the project is located between the nearest public road and the sea or
shoreline of any body of water located within the coastal zone.
Fact in Support of Finding:
1. The project site is not located between the nearest public road and the sea or shoreline.
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. XP2021-010 and Coastal Development Permit No. CD2021-039 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.
The project site is not located within the appeal area of the coastal zone; therefore, final
action by the City may not be appealed to the California Coastal Commission.
PASSED, APPROVED, AND ADOPTED THIS 16TH DAY OF DECEMBER, 2021.
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EXHIBIT “A”
CONDITIONS OF APPROVAL
(Project-specific conditions are in italics)
Planning Division
1. The development shall be in substantial conformance with the approved site plan stamped
and dated with the date of this approval (except as modified by applicable conditions of
approval).
2. The approval of this Limited Term Permit and Coastal Development Permit shall be
effective from January 1, 2022, to December 31, 2022, unless an extension is granted by
the Zoning Administrator in compliance with Sections 20.52.040(J) (Extension of Limited
Term Permit) and 21.54.060 (Time Limits and Extensions) of the NBMC. The Applicant
shall be required to cease all permitted operations and remove any temporary
improvements made to the outdoor spaces as part of this approval at the end of the
effective period.
3. On or before January 31, 2022, the Applicant shall either obtain necessary building permit
approvals for the existing patio cover or it shall be removed.
4. The expanded dining area shall not exceed 550 square feet in area.
5. 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 10 p.m., Friday through Sunday.
6. There shall be no use of amplified sound and/or live entertainment.
7. 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.
8. The sidewalk and all adjoining public rights-of-way shall remain free and clear from any
obstructions.
9. The Applicant shall obtain and maintain authorization from the State Department of
Alcoholic Beverage Control (ABC) for all areas where the sale, service or consumption of
alcohol is under the control of the Applicant. The establishment shall abide by all applicable
regulations of the State Department of Alcoholic Beverage Control.
10. The sale of alcohol “to go” to patrons that dine within the expanded outdoor patios shall be
prohibited.
11. The establishment shall abide by all applicable Orange County Health Care Agency
requirements.
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12. 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.
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-
010 and Coastal Development Permit No. CD2021-039 (PA2021-188) for ARC Butcher
& Baker Temporary Outdoor Expansion. 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.
c. Accessible parking stalls shall not be used for seating areas when onsite parking is
provided.
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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.
Fire Department
20. Covered outdoor dining areas (separate or consolidated) shall comply with the following
standards for tents larger than 400 square feet (two [2] or more walls) and/or canopies
larger than 700 square feet (no walls or one [1] wall):
• Post maximum occupant load.
• Do not exceed posted occupant load inside the tent or canopy.
• Visible and Mounted Fire Extinguishers with current service tags.
• No Smoking Signs shall be installed.
• Illuminated Exit Signs shall be installed.
• Emergency Lighting shall be provided.
• Exit doors are not to be blocked and are to remain accessible as exits while the tent
is occupied.
• All interior decorative fabrics or materials shall be flame resistant. Provide
Certificates of Flame Resistance.
• If Propane is used, a permit is required: Cooking and heating equipment shall not be
located within 10 feet of exits or combustible materials.
• LPG containers shall be located outside and be adequately protected and secured,
and a permit will be required. Open flame or other devices emitting flame, such as
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.
21. All Fire Department devices (fire hydrants, fire department connections, water valves,
etc.) shall have a 3-foot clearance in all directions.
22. Fire Department devices shall not be covered, blocked or otherwise hidden from plain
view.
23. 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.
24. 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.
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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.
Public Works Department
25. 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.
26. Seating or structures below overhead conductors and/or under the ‘drip line’ shall be
prohibited.
27. Public eating/dining at tables shall not be situated on top of energized vault lids, energized
underground structures, or next to vent pipes, etc.
28. Expanded outdoor dining areas shall adhere to the SCE clearance decal examples
provided.