HomeMy WebLinkAbout04_Oinkmoo Boba Minor Use Permit_PA2021-181CITY OF NEWPORT BEACH
ZONING ADMINISTRATOR STAFF REPORT
February 24, 2022
Agenda Item No. 4
SUBJECT: Oinkmoo Boba (PA2021-181)
Minor Use Permit No. UP2021-032
SITE LOCATION: 2233 West Balboa Boulevard, Unit 105
APPLICANT: Jonathan Ng
OWNER: American Commercial Equities Three, LLC
PLANNER: Liz Westmoreland, Associate Planner
949-644-3234, lwestmoreland@newportbeachca.gov
LAND USE AND ZONING
General Plan Land Use Plan Category: MU-W2 (Mixed-Use Water 2)
Zoning District: MU-W2 (Mixed-Use Water)
Coastal Land Use Plan Category: MU-W (Mixed-Use Water Related)
Coastal Zoning District: MU-W2 (Mixed-Use Water)
PROJECT SUMMARY
The applicant requests a minor use permit to operate a take-out service limited use within
an existing commercial retail space. The business would occupy approximately 1,275 gross
square feet and include 6 seats maximum for customers. No alcohol service, late hours
(after 11:00 p.m.), or live entertainment is proposed.
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) 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 Minor Use Permit No.
UP2021-032 (Attachment No. ZA 1).
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DISCUSSION
The subject property is located within the coastal zone. The Coastal Land Use Plan
category is MU-W (Mixed-Use Water Related), and it is located within the MU-W2
(Mixed-Use Water) Coastal Zone District. A coastal development permit is not
required because the project would not result in the intensification of use. The project
does not result in an increased demand for parking and the take-out business
includes a maximum of 6 seats or fewer.
The General Plan designates the site MU-W2 (Mixed-Use Water-Related). This
designation applies to properties in which marine-related uses may be intermixed
with general commercial, visitor-serving commercial, and residential dwelling units
on the upper floors. The proposed establishment is a commercial use intended to
serve nearby residents, the surrounding community, and visitors to the City of
Newport Beach. Therefore, it is consistent with the MU-W2 designation.
Small eating and drinking establishments exist in the mixed-use building and the
proposed take-out service establishment would be complementary to the
surrounding commercial and residential uses.
The property is located in the Mixed-Use Water Related (MU-W2) Zoning District.
The proposed establishment, which includes kitchen facilities, six seats or fewer,
no alcohol service, and no late hours, is a permitted use subject to the approval of
a minor use permit pursuant to Newport Beach Municipal Code Section 20.22.020
(Mixed-Use Zoning Districts Land Uses and Permit Requirements).
The property is nonconforming in parking because it is deficient in parking for the
nonresidential uses, as only 6 spaces are provided for commercial use on site.
Newport Beach Municipal Code (NBMC) Section 20.38.060 (Nonconforming
Parking) allows a change of use on sites with nonconforming parking. It specifies
that an existing use may be changed to a new use allowed in that zoning district
without providing additional parking, provided no intensification or enlargement
(e.g., increase in floor area, or lot area) occurs and the new use requires a parking
rate of no more than one space per two hundred fifty (250) square feet of gross
building area.
The parking requirement for a take-out service limited, eating,- and drinking
establishment is one space per 250 square feet, and no intensification or
enlargement is proposed. Therefore, no additional parking is required.
As conditioned, the allowed hours of operation will be 7 a.m. to 11 p.m., daily,
which will minimize any disturbance to residences near the property.
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The existing trash storage area at the rear of the property is adequate to
accommodate the proposed use. It is conveniently located where materials can be
deposited and collected and does not impede any parking spaces.
The applicant is required to obtain Health Department approval prior to opening
for business, and comply with the California Building Code to ensure the safety
and welfare of customers and employees within the establishment.
ENVIRONMENTAL REVIEW
This project is exempt from the California Environmental Quality Act (CEQA) pursuant to
Section 15301 under Class 1 (Existing Facilities) 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.
PUBLIC NOTICE
Notice of this application was published in the Daily Pilot, mailed to all owners 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. For additional information on filing an appeal, contact
the Planning Division at 949-644-3200.
Prepared by:
______________________________
Liz Westmoreland, Associate Planner
MS/law
Attachments: ZA 1 Draft Resolution
ZA 2 Vicinity Map
ZA 3 Project Plans
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Attachment No. ZA 1
Draft Resolution
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RESOLUTION NO. ZA2022-###
A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE
CITY OF NEWPORT BEACH, CALIFORNIA APPROVING MINOR
USE PERMIT NO. UP2021-032 FOR A NEW TAKE OUT- SERVICE
LIMITED RESTAURANT LOCATED AT 2233 WEST BALBOA
BOULEVARD, UNIT 105 (PA2021-181)
THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1.An application was filed by Jonathan Ng, with respect to property located at 2233
West Balboa Boulevard (Unit 105), and legally described as Parcel 1 of Block 22 of
Parcel Map No. 2007-146 requesting approval of a minor use permit.
2.The applicant proposes a minor use permit to operate a take-out service limited use
within an existing commercial retail space. The business would occupy
approximately 1,275 gross square feet and include 6 seats maximum for customers.
No alcohol service, late hours (after 11:00 p.m.), or live entertainment is proposed.
3.The subject property is designated MU-W2 (Mixed-Use Water 2) by the General Plan
Land Use Element and is located within the MU-W2 (Mixed-Use Water) Zoning District.
4.The subject property is located within the coastal zone. The Coastal Land Use
Plan category is MU-W (Mixed-Use Water Related), and it is located within the
MU-W2 (Mixed-Use Water) Coastal Zone District. A coastal development permit is
not required because the project would not result in the intensification of use. The project
does not result in an increased demand for parking and the take-out business includes
a maximum of 6 seats of fewer.
5.A public hearing was held on February 24, 2022, 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) 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 ongoing use of existing buildings where there is
negligible or no expansion of use. The proposed project involves alterations to the
interior floor plan of a vacant commercial space with no expansion in use.
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SECTION 3. REQUIRED FINDINGS.
In accordance with Section 20.52.020 (Conditional Use Permits and Minor Use Permits) of the
Newport Beach Municipal Code, the following findings, and facts in support of such findings
are set forth:
Finding:
A. The use is consistent with the General Plan and any applicable specific plan.
Facts in Support of Finding:
1. The General Plan designates the site MU-W2 (Mixed-Use Water-Related). This
designation applies to properties in which marine-related uses may be intermixed with
general commercial, visitor-serving commercial, and residential dwelling units on the
upper floors.
2. The proposed establishment is a commercial use intended to serve nearby residents,
the surrounding community, and visitors to the City of Newport Beach. Therefore, it is
consistent with the MU-W2 designation.
3. Small eating and drinking establishments exist in the mixed-use building and the
proposed take-out service establishment would be complementary to the surrounding
commercial and residential uses.
4. The subject property is not part of a specific plan area.
Finding:
B. The use is allowed within the applicable zoning district and complies with all other
applicable provisions of this Zoning Code and the Municipal Code.
Facts in Support of Finding:
1. The property is located in the Mixed-Use Water Related (MU-W2) Zoning District. The
proposed establishment, which includes kitchen facilities, six (6) seats or fewer, no
alcohol service, and no late hours, is a permitted use subject to the approval of a minor
use permit pursuant to Newport Beach Municipal Code Section 20.22.020 (Mixed-Use
Zoning Districts Land Uses and Permit Requirements).
2. The property is nonconforming in parking because it is deficient in parking for the
nonresidential uses. Based on a retail parking ratio of one (1) space per 250 square
feet, 44 spaces (10,799/250 = 43.2) are required. The property currently provides six (6)
spaces on-site.
3. NBMC Section 20.38.060 (Nonconforming Parking) allows a change of use on sites with
nonconforming parking. It specifies that an existing use may be changed to a new use
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allowed in that zoning district without providing additional parking, provided no
intensification or enlargement (e.g., increase in floor area, or lot area) occurs and the
new use requires a parking rate of no more than one (1) space per two hundred fifty
(250) square feet of gross building area.
4. The parking requirement for a take-out service limited, eating, and drinking
establishment is one (1) space per 250 square feet, and no intensification or
enlargement is proposed. Therefore, no additional parking is required.
5. As conditioned, the proposed establishment will comply with Zoning Code standards for
eating and drinking establishments, including those specific to the take-out service
limited use classification, which includes a maximum of six (6) seats and no alcohol
service.
Finding:
C.The design, location, size, and operating characteristics of the use are compatible with
the allowed uses in the vicinity.
Facts in Support of Finding:
1.The proposed establishment will be accessible from 23rd Street, West Balboa Boulevard
and two (2) alleys, which provide convenient access to motorists, pedestrians, and
bicyclists.
2. The mixed-use building contains various retail, and visitor-serving commercial uses
including small eating and drinking establishments. The proposed establishment is
compatible with the existing and allowed uses in the area.
3. As conditioned, the allowed hours of operation will be 7 a.m. to 11 p.m., daily, which will
minimize any disturbance to residences near the property.
4. The existing trash storage area at the rear of the property is adequate to accommodate
the proposed use. It is conveniently located where materials can be deposited and
collected and does not impede any parking spaces.
Finding:
D.The site is physically suitable in terms of design, location, shape, size, operating
characteristics, and the provision of public and emergency vehicle (e.g., fire and
medical) access and public services and utilities.
Facts in Support of Finding:
1.The existing parking lot provides adequate circulation for patrons.
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2. The site has been reviewed by the Fire Department to ensure adequate public and
emergency vehicle access is provided.
3. Any proposed site and tenant improvements will comply with the Zoning Code and all
Building, Public Works, and Fire Codes.
Finding:
E. Operation of the use at the location proposed 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 proposed use.
Facts in Support of Finding:
1. The project has been reviewed and includes conditions of approval to ensure that
potential conflicts with the surrounding land uses are minimized to the greatest extent
possible. The operator is required to take reasonable steps to discourage and correct
objectionable conditions that constitute a nuisance in parking areas, sidewalks and
areas surrounding the subject property and adjacent properties during business hours,
if directly related to the patrons of the establishment.
2. The proposed take-out service, eating and drinking establishment will help revitalize the
project site and provide an economic opportunity for the property owner to update the
tenant space, and provide additional services to residents and visitors.
3. The applicant is required to obtain Health Department approval prior to opening for
business and comply with the California Building Code to ensure the safety and welfare
of customers and employees within the establishment.
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) 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 Minor Use Permit
No. UP2021-032 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
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Community Development Director in accordance with the provisions of Title 20 Planning
and Zoning, of the Newport Beach Municipal Code.
PASSED, APPROVED, AND ADOPTED THIS 24TH DAY OF FEBRUARY, 2022.
_____________________________________
Jaime Murillo, Zoning Administrator
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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 project is subject to all applicable City ordinances, policies, and standards, unless
specifically waived or modified by the conditions of approval.
3. 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 Minor
Use Permit.
4. The hours of operation for the establishment shall be limited to 7 a.m. through 11 p.m.,
daily.
5. The sale of alcohol is prohibited.
6. The maximum number of seats allowed in the eating and drinking establishment shall
be six (6). No outdoor seating is permitted unless an amendment to this Minor Use
Permit or al Limited Term Permit is acquired.
7. All proposed signs shall be in conformance with the approved Comprehensive Sign
Program for the project site and provisions of Chapter 20.42 (Signs) of the Newport
Beach Municipal Code.
8. Minor Use Permit No. UP2021-032 shall expire unless exercised within 24 months from
the date of approval as specified in Section 20.91.050 of the Newport Beach Municipal
Code, unless an extension is otherwise granted.
9. This Minor Use Permit may be modified or revoked by the Zoning Administrator if
determined that the proposed uses or conditions under which it is being operated or
maintained is detrimental to the public health, welfare or materially injurious to property
or improvements in the vicinity or if the property is operated or maintained so as to
constitute a public nuisance.
10. Any change in operational characteristics, expansion in area, or other modification to
the approved plans, shall require an amendment to this Minor Use Permit or the
processing of a new Minor Use Permit.
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11. A copy of the Resolution, includin shall be
incorporated into the Building Division and field sets of plans prior to issuance of the
building permits.
12. All landscape materials and irrigation systems shall be maintained in accordance with
the approved landscape plan. All landscaped areas shall be maintained in a healthy and
growing condition and shall receive regular pruning, fertilizing, mowing, and trimming.
All landscaped areas shall be kept free of weeds and debris. All irrigation systems shall
be kept operable, including adjustments, replacements, repairs, and cleaning as part of
regular maintenance.
13. The site shall not be excessively illuminated based on the luminance recommendations
of the Illuminating Engineering Society of North America, or, if in the opinion of the
Director of Community Development, the illumination creates an unacceptable negative
impact on surrounding land uses or environmental resources. The Director may order
the dimming of light sources or other remediation upon finding that the site is excessively
illuminated.
14. Prior to the issuance of a building permit, the applicant shall pay any unpaid
administrative costs associated with the processing of this application to the Planning
Division.
15. All noise generated by the proposed use shall comply with the provisions of Chapter
10.26 and other applicable noise control requirements of the Newport Beach Municipal
Code. The maximum noise shall be limited to no more than depicted below for the
specified time periods unless the ambient noise level is higher:
Between the hours of 7:00AM
and 10:00PM
Between the hours of
10:00PM and 7:00AM
Location Interior Exterior Interior Exterior
Residential Property 45dBA 55dBA 40dBA 50dBA
Residential Property located within
100 feet of a commercial property 45dBA 60dBA 45dBA 50dBA
Mixed Use Property 45dBA 60dBA 45dBA 50dBA
Commercial Property N/A 65dBA N/A 60dBA
16.Should the property be sold or otherwise come under different ownership, any future
owners or assignees shall be notified of the conditions of this approval by either the
current business owner, property owner or the leasing agent.
17. Construction activities shall comply with Section 10.28.040 of the Newport Beach
Municipal Code, which restricts hours of noise-generating construction activities that
produce noise to between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday.
Noise-generating construction activities are not allowed on Saturdays, Sundays or
Holidays.
18. No outside paging system shall be utilized in conjunction with this establishment.
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19. All trash shall be stored within the building or within dumpsters stored in the trash
enclosure (three [3] walls and a self-latching gate) or otherwise screened from view of
neighboring properties, except when placed for pick-up by refuse collection agencies.
The trash enclosure shall have a decorative solid roof for aesthetic and screening
purposes.
20. Trash receptacles for patrons shall be conveniently located both inside and outside of
the establishment, however, not located on or within any public property or right-of-way.
21. The exterior of the business shall be maintained free of litter and graffiti at all times. The
owner or operator shall provide for daily removal of trash, litter debris and graffiti from the
premises and on all abutting sidewalks within 20 feet of the premises.
22. The applicant shall ensure that the trash dumpsters and/or receptacles are maintained
to control odors. This may include the provision of either fully self-contained dumpsters
or periodic steam cleaning of the dumpsters, if deemed necessary by the Planning
Division. Cleaning and maintenance of trash dumpsters shall be done in compliance
with the provisions of Title 14, including all future amendments (including Water Quality
related requirements).
23. Deliveries and refuse collection for the facility shall be prohibited between the hours of
10:00 p.m. and 7:00 a.m. on weekdays and Saturdays and between the hours of 10:00
p.m. and 9:00 a.m. on Sundays and Federal holidays, unless otherwise approved by the
Director of Community Development, and may require an amendment to this Minor Use
Permit.
24. Storage outside of the building in the front or at the rear of the property shall be
prohibited, with the exception of the required trash container enclosure.
25. A Special Events Permit is required for any event or promotional activity outside the
normal operational characteristics of the approved use, as conditioned, or that would
attract large crowds, involve the sale of alcoholic beverages, include any form of on-site
media broadcast, or any other activities as specified in the Newport Beach Municipal
Code to require such permits.
26. This approval shall expire and become void unless exercised within 24 months from the
actual date of review authority approval, except where an extension of time is approved in
compliance with the provisions of Title 20 Planning and Zoning of the Newport Beach
Municipal Code.
27. 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
approval of Oinkmoo Boba including, but not limited to, Minor Use Permit No. UP2021-032
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(PA2021-181). 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
28. The applicant is required to obtain all applicable permits from the City Building Division
and Fire Department. The construction plans must comply with the most recent, City-
adopted version of the California Building Code. The construction plans must meet all
applicable State Disabilities Access requirements. Approval from the Orange County
Health Department is required prior to the issuance of a building permit.
29. Any proposed doors shall not swing onto public property.
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Attachment No. ZA 2
Vicinity Map
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VICINITY MAP
Minor Use Permit No. UP2021-032
PA2021-181
2233 West Balboa Boulevard, Unit 105
Subject Property
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Attachment No. ZA 3
Project Plans
16
17
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19
20
21
22
23
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February 24, 2022, Zoning Administrator Agenda Comments
Comments submitted by: Jim Mosher ( jimmosher@yahoo.com ), 2210 Private Road, Newport Beach
92660 (949-548-6229)
Item 4. Oinkmoo Boba Minor Use Permit No. UP2021-032 (PA2021-181)
1.Two minor typographical errors:
Handwritten page 5, end of Section 1.4: “The project does not result in an increased
demand for parking and the take-out business includes a maximum of 6 seats of or fewer.”
Handwritten page 10, Condition 6, sentence 2: “No outdoor seating is permitted unless an
amendment to this Minor Use Permit or al a Limited Term Permit is acquired.”
2.Fact B.4 on handwritten page 7 assures the public that approval of this application would
not result in an intensification of use, as does Section 1.4 on page 5. But as best I can tell,
neither the staff report nor the resolution describes the existing or former use of this tenant
space. How can one reach a conclusion about change in intensity without knowing that?
3.Fact C.4, also on page 7, praises the convenient location of the existing trash enclosure,
which is depicted only in the “Existing Site Plan” on handwritten page 19, and is at a
considerable distance from the unit. Its dimensions are not called out, and they are a bit
difficult to guess from the PDF image displayed at an unknown scale (which does not seem
to be the 1/8” = 1’ printed on it).
a.Can the enclosure accommodate enough receptacles to meet the needs of all the
tenants in the center, including the extra containers that may be needed to comply
with the new state requirements for source separation of at least three solid waste
streams (recyclables, organics and other waste)?
b.Should the permit include conditions of approval reminding the operator of the need
to comply with current and future City waste disposal requirements (solid and
liquid?), including waste stream separation and edible food recovery?
Zoning Administrator - February 24, 2022
Item No. 4a Additional Materials Received Oinkmoo Boba Minor Use Permit (PA2021-181)