Loading...
HomeMy WebLinkAboutPA2022-053_20220308_Zoning Compliance Letter COMMUNITY DEVELOPMENT DEPARTMENT PLANNING DIVISION 100 Civic Center Drive, P.O. Box 1768, Newport Beach, CA 92658-8915 (949) 644-3200 www.newportbeachca.gov ZONING COMPLIANCE LETTER March 8, 2022 Reference No. PA2022-053 Attn: Peter Wohlfeiler 465 First Street W., Second Floor Sonoma, CA 95476 RE: 2121 West Balboa Boulevard, Newport Beach, CA 92663 047-151-01 Dear Mr. Wohlfeiler: The above referenced property is currently located within the Mixed-Use Water (MU-W2) and designated as Mixed-Use Water 2 (MU-W2) within the Land Use Element of the General Plan. The property is not located within a Planned Unit Development or an overlay district. For the abutting properties to the north, south, east and west, the Zoning District is Mixed-Use Water (MU-W2) and the General Plan land use designation is Mixed- Use Water 2 (MU-W2). Research of the permit and entitlement history of the property verifies that discretionary approvals were acquired from the City of Newport Beach Planning Division for development of the property. With the exception of the discretionary approvals for signs, copies of those approvals are attached. Please contact the Planning Division for further details on any discretionary application: • Use Permit No. UP2017-028 and Operators License No. OL2017-005 (PA2017-198) – approved on 3/22/2018 by the Planning Commission to allow a food service, eating and drinking establishment with late hours (7 a.m. to 2 a.m.) and a type 41 ABC license. • Emergency Temporary Use Permit No. UP2020-142 and Coastal Development Permit No. CD2020-127 (PA2020-245) – approved on Page 2 Zoning Compliance - PA2022-053 Tmplt: 08-15-176 8/21/2020 to allow an outdoor dining patio of approximately 1,900 square feet within the sidewalk and public parking area adjacent to the building. The subject property does not have any active complaints on record. For information regarding code violations, please contact the Code Enforcement Division at (949) 644-3215 and the Building Division at (949) 644-3200. Please contact the Building Division to obtain copies of Certificates of Occupancy. For information regarding plat maps or public rights-of way, please contact the Public Works Department at (949) 644-3311. Should you have any further questions, please contact me at 949-644-3235, ccurley@newportbeachca.gov. Sincerely, On behalf of Seimone Jurjis, PE, CBO, Community Development Director By: Enclosures: Aerial Map Use Permit No. UP2017-028 Emergency Temporary Use Permit No. UP2020-142 Feet Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in its use. Disclaimer: 3/8/2022 0 8040 RESOLUTION NO. PC2018-012 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING CONDITIONAL USE PERMIT NO. UP2017-028 FOR A FOOD SERVICE, EATING AND DRINKING ESTABLISHMENT WITH LATE HOURS AND A TYPE 41 ALCOHOLIC BEVERAGE CONTROL LICENSE LOCATED AT. 2121 WEST BALBOA BOULEVARD (PA2017-198) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. An application was filed by Christian Fanticola/T&T Taco, LLC ("Applicant") with respect to property located at 2121 West Balboa Boulevard, and legally described as Lot 14 in Block 21 of Newport Beach, County of Orange, State of California, as per Map recorded in Book 3, Page 26 of Miscellaneous Maps ("Property"), in the office of the County Recorder of said County requesting approval of a conditional use permit. 2. Applicant proposes a conditional use permit for a food service, eating and drinking establishment with late hours and Type 41 (On Sale Beer and Wine) Alcoholic Beverage Control (ABC) license in an existing legal nonconforming eating and drinking establishment. The eating and drinking establishment includes an interior dining area, a kitchen, restroom facilities, and a take-out window. The proposed hours of operation are from 6 a.m. to 2 a.m. 3. The subject Property is located within the Mixed -Use Water Related (MU -W2) Zoning District and the General Plan Land Use Element category is Mixed -Use Water Related MU -W2). 4. The subject Property is located within the coastal zone. The Coastal Land Use Plan category is Mixed -Use Water Related (MU -W). A coastal development permit is not required because the request is to change the type of permitted Alcoholic Beverage Control (ABC) license and does not intensify or expand the existing eating and drinking establishment use. 5. A public hearing was held on March 22, 2018, in the City Hall Council Chambers, 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code ("NBMC"). Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting.. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 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 Planning Commission Resolution No. PC2018-012 Paae 2 of 15 of Regulations, Title 14, 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 proposed allows the existing eating and drinking establishment to continue operating with the upgrade from a Type 40 (On Sale Beer Only) ABC license to a Type 41 (On Sale Beer and Wine). SECTION 3. REQUIRED FINDINGS. In accordance with NBMC Subsection 20.48.030(C)(3) (Alcohol Sales), the following findings and facts in support of such findings are set forth: Findin.g: A. The use is consistent with the purpose and intent of Section 20.48.030 (Alcohol Sales) of the Zoning Code. Facts in Support of Finding: In finding that the proposed use is consistent with NBMC Section 20.48.030, the following criteria must be considered: i. The crime rate in the reporting district and adjacent reporting districts as compared to other areas in the City. The subject property is located in Reporting District 15 (RD 15). The Part One Crimes Part One Crimes are the eight most serious crimes defined by the FBI Uniform Crime Report — homicide, rape, robbery, aggravated assault, burglary, larceny -theft, auto theft, and arson) crime rate in RD 15 was 288 crimes reported in 2016, which is higher than adjacent reporting districts and the Citywide average. The higher crime rate is largely due to the number of visitors to the Balboa Peninsula, the high concentration of restaurants, and the high ratio of non-residential to residential uses clustered in the commercial and mixed-use districts. The McFadden Square areas has historically been a business and recreation hub for residents and tourists, drawing a large number of visitors year-round but particularly in the summer months. While the area does have a high concentration of alcohol licenses, the proposed change from a Type 40 (On Sale Beer Only) to Type 41 (On Sale Beer and Wine) will not increase the number of alcohol licenses. The service of alcoholic beverages would provide additional menu options for customers and could enhance the economic viability of the business, while the CUP and Operator License will provide greater enforcement options. 2. The Police Department has reviewed the proposal, provided operating conditions of approval, and has no objection to the change of alcoholic beverage license, subject Planning Commission Resolution No. PC2018-012 Paae 3 of 15 to appropriate conditions of approval. The operation of the establishment includes the approved floor plan with no separate bar counter, business hours that are more restrictive than the current unrestricted hours and the requirement to obtain an Operator License. The Operator License provides an additional tool for the Police Department to control the use, especially should objectionable activities occur at the site. ii. The numbers of alcohol-related calls for service, crimes, or arrests in the reporting district and in adjacent reporting districts. RD 15 has a higher number of DUI/Drunk Arrests, Total Arrests, and Calls for Service recorded in 2016 compared to adjacent reporting districts. From January 1, 2016 through December 31, 2016,,the tenant space was occupied by Original Pizza and the Police Department reported four calls for service at the address. The Police Department has reviewed the application and has no objection. The Police Department does not anticipate any increase in crime or alcohol-related incidents with the approval of this application subject to the proposed conditions of approval. iii. The proximity of the establishment to residential zoning districts, day care centers, hospitals, park and recreation facilities, places of worship, schools, other similar uses, and any uses that attract minors. The project site is located in a mixed-use zoning district which allows for residential uses when intermixed with nonresidential uses. The nearest residential zoning district is located approximately 315 feet east of the project site, at the corner of West Balboa Boulevard and 21st Street. The nearest residential 'units are located on the second floor above the restaurant. 2. The nearest recreational facilities, the beach and the Newport Pier, are located approximately 300 feet to the southwest of the subject property. The nearest church, Our Lady of Mount Carmel Church, is located approximately 0.5 miles to the east of the subject property along West Balboa Boulevard. The nearest school, Newport Elementary School, is located 0.7 miles to the east of the subject property along West Balboa Boulevard. The nearest daycare center, Children's Center by the Sea, is approximately 0.6 miles to the east along West Balboa Boulevard. The proposed use is surrounded by other commercial, retail, and office uses. 3. The Balboa Peninsula is generally characterized by a high number of visitors, in which commercial and residential zoning districts are located in close proximity to one another and eating and drinking establishments with alcohol service are common. The proposed change in ABC license type in conjunction with the CUP and Operator License conditions of approval, where none currently exist, will help minimize nuisances that the restaurant could have to surrounding uses and ensure that the use remains compatible with the surrounding community. Planning Commission Resolution No. PC2018-012 Paae 4 of 15 iv. The proximity to other establishments selling alcoholic beverages for either off-site or on- site consumption. The per capita ratio of one license for every 69 residents is higher than all adjacent Census Tracts and the average City-wide ratio. This is due to the higher concentration of commercial land uses, many of them visitor -serving, in McFadden Square, Lido Marina Village and Cannery Village, and lower number of residential population in the RD 15 area. Nearby establishments selling alcohol include the Stag Bar + Kitchen, 21 Oceanfront, Dory Deli, Beach Ball, Blackie's and several others located in the McFadden Square area. 2. While the license -to -resident ratio is higher than average and proposed establishment is located in close proximity to other establishments selling alcoholic beverages, staff believes the physical and operational characteristics of the restaurant would make the continuation of alcoholic beverage sales appropriate at this location. v. Whether or not the proposed amendment will resolve any current objectionable conditions. No objectionable conditions are presently occurring at the site. 2. The existing tenant space was vacant since between early 2017 and December 2017 when Taco Bell Cantina opened. In addition to interior and facade improvements, the building was brought into compliance with all current Building and Fire Code requirements. 3. The restaurant is currently a legal non -conforming use and when renovations are and is allowed open and operate in the configuration show on the attached plans, including the take-out window. The nonconforming status also allows the operator to hold a Type 40 (On Sale Beer Only) ABC license and operate 24 hours, daily, where the proposed hours are 6 a.m. to 2 a.m. 4. All employees serving alcohol will be required to be at least 21 years of age, and undergo, and successfully complete, Responsible Beverage Service (RBS) training. Approval of this application will require the operator to obtain an Operator License pursuant to Chapter 5.25 of the NBMC. The Operator License will provide enhanced tools to control noise, loitering, litter, disorderly conduct, parking/circulation and other potential disturbances that could result from the use, and will provide the Police Department with means to modify, suspend, or revoke the operator's ability to maintain late -hour operations. In accordance with Subsection 20.52.020(F) (Findings and Decision), the following findings and facts in support of such findings are set forth: Planning Commission Resolution No. PC2018-012 Page 5 of 15 X- -•w B. The use is consistent with the General Plan and any applicable specific plan. Facts in Support of Finding: The General Plan and Coastal Land Use Plan land use designation for this site is MU -W2 Mixed -Use Water Related). The MU -W2 designation applies to 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 eating and drinking establishment is consistent with this land use designation. Eating and drinking establishment uses can be expected to be found in this area and similar locations and are complementary to the surrounding commercial and residential uses. 2. Although the existing structure in which the eating and drinking establishment is located exceeds the allowed floor area ratio, the proposed application will not result in an increase in the floor area. The project is consistent with the Land Use Element development policies and related non -conforming regulations. 3. The proposed expansion is consistent with General Plan Land Use Policy LU6.8.2 Component Districts) which emphasizes that McFadden Square should be utilized as one of the primary activity centers on the Balboa Peninsula. The use of a food service, eating and drinking establishment in a location previously occupied by a food service, eating and drinking establishment for over 50 years will continue to serve residents and visitors to the area. 4. Eating and drinking establishments are common in the vicinity along the Balboa Peninsula and are frequented by visitors and residents. The establishment is compatible with the land uses permitted within the surrounding neighborhood. The building in which the eating and drinking establishment is located is currently undergoing interior and exterior upgrades consistent with general plan policies. 5. The subject property is not part of a specific plan area. C. The use is allowed within the applicable zoning district and complies with all other applicable provisions of the Zoning Code and the Municipal Code. Facts in Support of Finding: The MU -W2 (Mixed -Use Water Related) zoning district applies to waterfront properties in which marine -related uses may be intermixed with general commercial, visitor -serving commercial and residential dwelling units on the upper floors. Eating and drinking establishments classified as Food Service, Late -Hours require the approval of conditional use permit within the MU -W2 (Mixed -Use Water Related) Zoning District. Planning Commission Resolution No. PC2018-012 Page 6 of 15 2. An eating and drinking establishment with a Type 40 (On Sale Beer Only) ABC license has been operating at this location since 1963 without the benefit of a use permit. The recent re -model of the eating and drinking establishment did not increase the net public area nor patron seating. The change to a Type 41 (On Sale Beer and Wine) ABC license constitutes the addition of a menu item and does not intensify the use of the property. 3. The Property does not provide on-site parking, however, the tenant space is legal non - confirming related to parking. The tenant improvements were allowed by the zoning code because the net public area and seating did not increase beyond the historical size of the eating and drinking establishment. The change of ABC license does not require additional parking. The McFadden Square area, served by the two adjacent municipal lots and the close proximity to multiple commercial uses and beach and coastal recreation areas, will result in shared trips to the eating and drinking establishment. 4. The existing take-out window located adjacent to the McFadden Place parking lot is a legal non -conforming component of the existing eating and drinking establishment. A condition of approval have been included to help ensure a path of travel is maintained for all sidewalk users. 5. The existing building and recent alterations (no expansion of floor area) were allowed by Section 20.38.040 (Nonconforming Structures) of the Zoning Code and Land Use Element policies that allow the continued use of principal structures that exceed the allowed FAR. D. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity. Facts in Support of Finding: The operation of the eating and drinking establishment will be restricted to business hours between 6 a.m. and 2 a.m., daily, where the existing nonconforming eating and drinking establishment use is allowed to operate twenty-four (24) hours daily. The proposed closing hour is compatible with other late night eating and drinking establishments in the area. The limitation on operating hours will improve compatibility with the second floor apartments located in the mixed-use building. The Newport Beach Police Department has reviewed the proposed application and does not object to the proposed business hours. 2. An eating and drinking establishment has been operating in this location without the benefit of a conditional use permit since 1963. Conditions of approval limiting the hours and use of take-out window will help ensure compatibility with the commercial and residential uses is maintained. 3. The approved floor plan provides a new interior dining area with improved restroom facilities, a kitchen area, and a take-out window. Live entertainment and dancing are not proposed or allowed without the approval of a special event permit. Planning Commission Resolution No. PC2018-012 Paae 7 of 15 4. The project includes conditions of approval to ensure that potential conflicts are minimized to the greatest extent possible. Although the proposed eating and drinking establishment is located in a mixed-use building, the tenant space has historically been occupied by an eating and drinking establishment. The McFadden square area is a popular local and tourist destination that helps create a vibrant mixed-use environment, historically associated with nightlife and late hour establishments. The added restriction on hours will ensure the eating and drinking establishment closes at the same time as other late hour establishments. The operator is also required to control trash and litter around the subject property. 5. The operational conditions of approval recommended by the Police Department relative to the sale of alcoholic beverages, including an Operator License, will help ensure compatibility with the surrounding uses and minimize alcohol related impacts. The project has been conditioned to ensure the welfare of the surrounding community. 6. The Property is located in a relatively dense area with multiple uses within a short distance of each other. The McFadden Square area is conducive to a significant amount of walk-in patrons. The area experiences parking shortages in the daytime during the summer months, but parking is typically available during the rest of the year. Two municipal parking lots and on -street parking is available in the area to accommodate the proposed use in the off-season months. Finding: E. 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: The project site is located within an existing commercial building and the tenant space is designed and developed for an eating and drinking establishment. The design, size, location, and operating characteristics of the use are compatible with the surrounding neighborhood. The existing tenant space on the subject property has historically been occupied by an eating and drinking establishment. Access to the site is provided on 22nd Street and McFadden Place via West Balboa Boulevard. 2. The continued use of the take-out window will not inhibit the public use of the adjacent sidewalk and conditions of approval have been included to ensure the patrons using the take-out window do not block or restrict use of the sidewalk. 3. Adequate public and emergency vehicle access, public services, and utilities are provided to the Property. All required utility and building upgrades were reviewed and approved during the plan check review of the recent tenant improvements. Planning Commission Resolution No. PC2018-012 Paae 8 of 15 4. The tenant improvements were reviewed for compliance with all Building, Public Works, and Fire Codes, as well as compliance with all City ordinances and conditions of approval. F. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare ofpersons residing or working in the neighborhood of the proposed use. Facts in Support of Finding: 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 recent improvements to the existing eating and drinking establishment should have a positive impact on the area and may promote further revitalization of commercial properties located in McFadden Square. The eating and drinking establishment will serve the surrounding community and visitors. 3. The eating and drinking establishment is not allowed to operate as a bar, tavern, cocktail lounge, or nightclub as defined by the NBMC. 4. The eating and drinking establishment will provide dining with alcohol service, a public convenience to the surrounding neighborhood and visitors to the area. This will help to revitalize the project site and provide an economic opportunity for the property owner to continue to upgrade and maintain the existing mixed-use building, which best serves the quality of life for the surrounding visitor- and local -serving community. 5. The eating and drinking establishment is currently allowed to operate twenty-four (24) hours daily without the benefit of a use permit or operator's license. The conditions of approval and requirement to obtain and operator's license will provide a greater enforcement mechanism should the eating and drinking establishment become a nuisance or operation in manner detrimental to the surrounding residents and businesses. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: The Planning Commission of the City of Newport Beach hereby approves Conditional Use Permit No. UP2017-028, subject to the conditions set forth in Exhibit "R", which is attached Planning Commission Resolution No. PC2018-012 Paqe 9 of 15 hereto and incorporated by reference. This approval allows a food service, eating and drinking establishment with late hours and a Type 41 (On Sale Beer and Wine) Alcoholic Beverage Control (ABC) license located at 2121 West Balboa Boulevard. 2. This action shall become final and effective fourteen (14) days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED AND ADOPTED THIS 22nd DAY OF MARCH. 2018. AYES: Kleiman, Koetting, Kramer, Lowrey, Weigand and Zak NOES: None 90=9 1 ABSENT: None go Pet r Koettiqg, Chairmaia I - BY: /0-t L - Erik Wbigand, $q6r( Planning Commission Resolution No. PC2018-012 Paae 10 of 15 EXHIBIT "A" CONDITIONS OF APPROVAL Project -specific conditions are in italics) Planning Division 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. Conditional Use Permit No. UP2017-028 shall expire unless exercised within twenty-four 24) months from the date of approval as specified in NBMC Section 20.54.060, unless an extension is otherwise granted. 3. This CUP shall be reviewed by the Planning Commission one year from the implementation date. The one year review is a report to the Planning Commission, not a public hearing. 4. The project is subject to all applicable. City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 5. 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 Conditional Use Permit. 6. This Conditional Use Permit may be modified or revoked by the City Council or Planning Commission should they determine 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. 7. Any change in operational characteristics, expansion in area, or other modification to the approved plans, may require an amendment to this Conditional Use Permit or the processing of a new Conditional Use Permit. 8. Should the property be sold or otherwise come under different ownership, any future owners or either the current business owner, property owner or the leasing agent shall notify assignees of the conditions of this approval. 9. Prior to the issuance of a building permit, Applicant shall pay any unpaid administrative costs associated with the processing of this application to the Planning Division. 10. A copy of this approval letter shall be incorporated into the Building Division and field sets of plans prior to issuance of the building permits. Planning Commission Resolution No. PC2018-012 Page 11 of 15 11. Prior to issuance of a buildingep rmit, Applicant shall submit to the Planning Division an additional copy of the approved architectural plans for inclusion in the Conditional Use Permit file. The plans shall be identical to those approved by all City departments for building permit issuance. The approved copy shall include architectural sheets only and shall be reduced in size to 11 inches by 17 inches. The plans shall accurately depict the elements approved by this Conditional Use Permit and shall highlight the approved elements such that they are readily discernible from other elements of the plans. 12. The hours of operation for the eating and drinking establishment including the take-out window shall be limited to between 6 a.m. and 2 a.m., daily. 13. The operator is responsible for assuring patrons utilizing the take-out window do not queue in manner that obstructs the public's use of the adjacent sidewalk. If issues arise related to obstruction of the sidewalk, the City may require installation of signage on the building, or other modifications to ensure -the sidewalk remains useable for the general public. 14. Should parking andlor traffic congestion issues related to the take-out window arise, as determined by the City Traffic Engineer, the operator and the City will work together to develop solutions to address the issues. 15. The net public area of the eating and drinking establishment shall be limited to a maximum of 504 square feet. 16. The dining area shall be limited to thirty-two (32) seats. The addition of bar area is prohibited. 17. Food service from the regular menu shall be available to patrons up to thirty (30) minutes before the scheduled closing time. 18. All customers must vacate the establishment by 2 a.m., daily. 19. The removal or relocation of pool tables, tables, chairs, stools, or other furniture to accommodate an area for dancing shall be prohibited. 20. The eating and drinking establishment is allowed a Type 41 (On Sale Beer and Wine) ABC License. The sale of alcohol for off-site consumption is prohibited. 21. All proposed signs shall be in conformance with applicable provisions of NBMC Chapter 20.42 (Signs). 22. All lighting shall conform to the standards of NBMC Section 20.30.070 (Outdoor Lighting). The Community Development Director may order the dimming of light sources or other remediation upon finding that the site is excessively illuminated. If outdoor lighting is proposed, Applicant shall submit a photometric survey as part of the plan check to verify illumination complies with the Zoning Code standards. Planning Commission Resolution No. PC2018-012 Page 12 of 15 23. The operator of the eating and drinking establishment shall be responsible for the control of noise generated by the subject eating and drinking establishment including, but not limited to, noise generated by patrons, food service operations, and mechanical equipment. All noise generated by the proposed use shall comply with the provisions of NBMC Chapter 10.26 and other applicable noise control requirements of the NBMC. Pre- recorded music may be played in the tenant space, provided exterior noise levels outlined below are not exceeded. The noise generated by the proposed use shall comply with the provisions of NBMC Chapter 10.26. The maximum noise shall be limited to no more than depicted below for the specified time period unless the ambient noise level is higher: 24. That no outdoor paging system shall be utilized in conjunction with the eating and drinking establishment. 25. A sound system shall be permitted for pre-recorded music played at a background level only. Sound shall adhere to Chapter 10.26 of the Newport Beach Municipal Code. 26. 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 NBMC Title 14, including all future amendments (including Water Quality related requirements). 27. Trash receptacles for patrons shall be conveniently located inside the establishment. 28. 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, and debris from the premises and on all abutting sidewalks and parking areas within 20 feet of the Property premises. Graffiti shall be removed within 48 hours of written notice from the City. 29. Deliveries and refuse collection for the eating and drinking establishment shall be prohibited between the hours of 10 p.m. and 7 a.m. on weekdays and Saturdays and between the hours of 10 p.m. and 9 a.m. on Sundays and federal holidays; unless otherwise approved by the Director of Community Development, and may require an amendment to this Use Permit. Between the hours of 7 a.m. and 10 p.m. Between the hours of 10 p.m. and 7 a.m. interior exterior interior exterior Measured at the property line of commercially zoned property: N/A 65 dBA N/A 60 dBA Measured at the property line of I residentially zoned property: N/A 60 dBA N/A 50 dBA Residential property: 45 dBA 55 dBA 40 dBA 50 dBA 24. That no outdoor paging system shall be utilized in conjunction with the eating and drinking establishment. 25. A sound system shall be permitted for pre-recorded music played at a background level only. Sound shall adhere to Chapter 10.26 of the Newport Beach Municipal Code. 26. 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 NBMC Title 14, including all future amendments (including Water Quality related requirements). 27. Trash receptacles for patrons shall be conveniently located inside the establishment. 28. 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, and debris from the premises and on all abutting sidewalks and parking areas within 20 feet of the Property premises. Graffiti shall be removed within 48 hours of written notice from the City. 29. Deliveries and refuse collection for the eating and drinking establishment shall be prohibited between the hours of 10 p.m. and 7 a.m. on weekdays and Saturdays and between the hours of 10 p.m. and 9 a.m. on Sundays and federal holidays; unless otherwise approved by the Director of Community Development, and may require an amendment to this Use Permit. Planning Commission Resolution No. PC2018-012 Page 13 of 15 30. All doors and windows of the eating and drinking establishment shall remain closed after 11 p.m. except for the ingress and egress of patrons and employees and use of the take- out window. 31. Storage outside of the building in the front or at the rear of the Property shall be prohibited. 32. 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 the Taco Bell Cantina CUP including, but not limited to, the Conditional Use Permit No. UP2017-028 (PA2017-198). 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. 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. Applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. Police Department 33. The operator of the establishment shall secure and maintain an Operator License pursuant to NBMC Chapter 5.25. 34. The Operator License required to be obtained pursuant to NBMC Chapter 5.25, may be subject to additional and/or more restrictive conditions such as a security plan to regulate and control potential late -hour nuisances associated with the operation of the establishment. 35. The approval is for an eating and drinking establishment with on -sale alcoholic beverage service. The type ofalcoholic beverage license issued by the Califomia Board of Alcoholic Beverage Control shall be a Type 41 (On Sale Beer and Wine) license, in conjunction with the eating and drinking establishment as the principal use of the facility. 36. No off sales of alcohol shall be permitted 37. All owners, managers, and employees must abide by all requirements and conditions of the Alcoholic Beverage License. 38. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee. Planning Commission Resolution No. PC2018-012 Page 14 of 15 39. There shall be no live entertainment or dancing allowed on the premises. Live entertainment may be allowed subject to the approval of a Special Event Permit for each occasion. 40. No games or contests requiring or involving the consumption of alcoholic beverages shall be allowed. 41. There shall be no reduced priced alcohol beverage promotions after 9 p.m. 42. Strict adherence to maximum occupancy limits is required. 43. All owners, managers, and employees selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for selling alcoholic beverages. The certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service or other certifying/licensing body, which the State may designate. The establishment shall comply with the requirements of this section within 180 days of the issuance of the certificate of occupancy. Records of each owner's, manager's and employee's successful completion of the required certified training program shall be maintained on the premises and shall be presented upon request by a representative of the City of Newport Beach. 44. Approval does not permit the premises to operate as a bar, tavern, cocktail lounge, or nightclub as defined by the NEMC. 45. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The licensee shall at all times maintain records, which reflect separately the gross sales of food and alcoholic beverages of the licensed business. These records shall be kept no less frequently than on a quarterly basis and shall be made available to the Police Department on demand. 46. There shall be no exterior advertising or signs of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages. Interior displays of alcoholic beverages or signs, which are clearly visible to the exterior, shall constitute a violation of this condition. 47. Any event or activity staged by an outside promoter or entity, where Applicant, operator, owner or his employees or representatives share in any profits, or pay any percentage or commission to a promoter or any other person is prohibited. 48. There shall be no on-site radio, televisions, video, film, or other electronic media broadcasts, including recordings to be broadcasted later, which include the service of alcoholic beverages, without first obtaining an approved Special Event Permit issued by the City. Planning Commission Resolution No. PC2018-012 Page 15 of 15 49. "VIP" passes or other passes to enter the establishment, as well as door charges, cover charges, or any other form of admission charge, including minimum drink order of the sale of drinks is prohibited (excluding charges for prix fixe meals). 50. Management shall maintain an operational log of daily activities related to the sale and service of alcoholic beverages, as well as any additional security actions. Management shall make this log available to the Police Department upon request. 51. Management shall maintain a security system with a 30 -day retention and make those recordings available to the Police Department upon request. 52. The Permittee shall implement an operational security plan designed to ensure that Alcoholic Beverage Control regulations and building occupancy limits are being followed. The content and adequacy of the plan shall be subject to the review and approval of the Police Department. The Police Department shall be notified of any changes to the approved plan. 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: Taco Bell Cantina ETUP and ECDP (PA2020-245) ▪ Emergency Temporary Use Permit No. UP2020-142 ▪ Emergency Coastal Development Permit No. CD2020-127 Site Location 2121 W Balboa Boulevard Applicant Dru Fanticola of the Taco Bell Cantina Property Owner Mario Marovic On August 21, 2020, the Community Development Director approved Emergency Temporary Use Permit No. UP2020-142 and Emergency Coastal Development Permit No. CD2020-127. This approval is based on the following findings and subject to the following conditions. I. SUMMARY OF PROPOSED OPERATION An emergency temporary use permit and emergency coastal development permit to allow the creation of an outdoor dining patio (approximately 1,900 square feet) within the sidewalk and public parking area adjacent to the building. The patio area will occupy seven (7) public parking spaces. 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) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3. 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 project includes a 1,900-square-foot outdoor dining patio area expansion to an existing restaurant and is within the parameters noted for these exemptions and will not have a significant effect on the DocuSign Envelope ID: A05FD634-E727-4EB2-BAA8-ECC65EE75853 Taco Bell Cantina ETUP and ECDP (PA2020-245) August 21, 2020 Page 2 Tmplt: 05/22/2020 environment. 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. The proposed operation is necessary to provide adequate space to allow for appropriate social distancing. 3. The permitted use shall adhere to applicable State of California and Orange County Health Care Agency guidelines for the safe operation of the use. It is the responsibility of the permittee to implement and follow industry-specific guidance of the State of California and the Orange County Health Care Agency guidelines. 4. The proposed operation has been reviewed by and is acceptable to the Building Division, Fire & Life Safety Division, and the Public Works Department. Conditions of Approval are included to help ensure this operation is not detrimental; 5. The proposed operation does not constitute an increase in the overall occupant load beyond what the existing Use Permit and/or Certificate of Occupancy allow; 6. An adequate supply of parking is available to serve the subject business and surrounding uses. 7. The proposed operation does not extend any hours of operation beyond those currently permitted by Use Permit No. UP2017-028. The temporarily expanded area will close by 9 p.m. Monday through Thursday and by 10 p.m. Friday through Sunday. 8. The permitted use must be operated in compliance with applicable State Department of Alcoholic Beverage Control (ABC) requirements. 9. The overall plan includes appropriate delineation of outdoor use spaces with temporary physical barriers including stanchion and rope and water-filled traffic barrier. 10. 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: A05FD634-E727-4EB2-BAA8-ECC65EE75853 Taco Bell Cantina ETUP and ECDP (PA2020-245) August 21, 2020 Page 3 Tmplt: 05/22/2020 EMERGENCY COASTAL DEVELOPMENT PERMIT FINDINGS 1. The COVID-19 global pandemic has created a National, State and Local emergency that is more fully described in Emergency Ordinance No. 2020-005. The COVID-19 outbreak is an emergency pursuant to Newport Beach Municipal Code (NBMC) Section 21.52.025 because immediate action is necessary to allow commercial business and institutional uses to re-open consistent with State and local public health guidelines designed to reduce the spread of COVID-19. If immediate action is not taken to properly regulate the re-opening of commercial business and institutional uses, the spread of COVID-19 will likely be more severe thereby exacerbating the existing public health emergency. 2. Development authorized is temporary and will only be in place during the described emergency consistent with Emergency Ordinance No. 2020-005. All development authorized by this permit must be removed after the state of emergency is lifted. 3. Development authorized by this permit is not located in any environmentally sensitive habitat 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 once again visit the coastal areas. 4. Pedestrian access is maintained through the area is maintained for visitors. 5. Development authorized is not located in an area in which the California Coastal Commission retains direct permit review authority. IV. CONDITIONS OF APPROVAL 1. Only that specifically described above and depicted in the attached site plan is authorized, subject to the conditions set forth below. Any additional changes require separate review and may necessitate separate authorization from the Director. The expanded dining area shall be in substantial conformance with the site plan and seating layout provided in Attachment No. CD 3. 2. As long as this Emergency Temporary Use Permit is in effect, all NBMC provisions and any restrictions set forth in an applicable discretionary permit regulating uses, nonconforming uses, development standards, parking 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 DocuSign Envelope ID: A05FD634-E727-4EB2-BAA8-ECC65EE75853 Taco Bell Cantina ETUP and ECDP (PA2020-245) August 21, 2020 Page 4 Tmplt: 05/22/2020 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. 4. The expanded outdoor dining patio shall not exceed 1,900 square feet (32 seats). 5. The existing allowed hours of operation of the establishment shall not be extended. The temporarily expanded area shall close by 9 p.m., Monday through Thursday and by 10 p.m., Friday through Sunday. 6. The use of amplified sound within the temporary area shall be prohibited. 7. 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. 8. The Applicant shall install and maintain a physical barrier (water-filled traffic barrier) between any area used and adjacent pedestrian walkways. 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 restaurant or expanded outdoor patios shall be prohibited. 11. The establishment shall abide by all applicable Orange County Health Care Agency requirements. 12. Establishments that provide food service, shall abide by the COVID-19 Industry Guidance: Dine-In Restaurants provided by the California Department of Public Health and Department of Industrial Health. 13. The permittee shall provide adequate trash receptacles within the permitted patio shall and the operator shall provide for periodic and appropriate removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. Building 14. Any areas used for temporary commercial or institutional use shall be accessible to disabled persons. a. An accessible path to all functional areas shall be provided. b. Access to restrooms shall be provided at all times. DocuSign Envelope ID: A05FD634-E727-4EB2-BAA8-ECC65EE75853 Taco Bell Cantina ETUP and ECDP (PA2020-245) August 21, 2020 Page 5 Tmplt: 05/22/2020 c. Accessible parking stalls shall not be used for seating areas when on-site parking is provided. d. 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. Provide not less than 5 percent accessible seating at tables and counters with knee clearance of at least 27 inches high, 30 inches wide, and 19 inches deep. 16. The tops of dining surfaces and work surfaces shall be 28 inches to 34 inches above the finish floor. 17. 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 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. Public Works 23. The Applicant shall install and maintain a substantial physical barrier between any area used and adjacent to any street, driveway or parking area. 24. Substantial barriers shall be located entirely within the public parking stalls and shall not encroach into the roadway. 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. DocuSign Envelope ID: A05FD634-E727-4EB2-BAA8-ECC65EE75853 Taco Bell Cantina ETUP and ECDP (PA2020-245) August 21, 2020 Page 6 Tmplt: 05/22/2020 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 in Attachment No. CD 2. Miscellaneous 29. The Community Development Director or designee may inspect the modified area at any time during normal business hours. 30. 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. 31. 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 32. 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. 33. 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. 34. 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 and Coastal Development Permit for Taco Bell Cantina. 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 DocuSign Envelope ID: A05FD634-E727-4EB2-BAA8-ECC65EE75853 Taco Bell Cantina ETUP and ECDP (PA2020-245) August 21, 2020 Page 7 Tmplt: 05/22/2020 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. BMZjp Attachments: CD 1 Filed Application CD 2 SCE Project Decals CD 3 Site Plan Layout 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. Insert applicant name and title Signature Date DocuSign Envelope ID: A05FD634-E727-4EB2-BAA8-ECC65EE75853 Owner Dru Fanticola 8/21/2020