HomeMy WebLinkAbout05 - LCP Amendment Related to Tattoo Establishments (PA2020-030)Q �EwPpRT
CITY OF
s NEWPORT BEACH
`q4�:09 City Council Staff Report
April 26, 2022
Agenda Item No. 5
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Seimone Jurjis, Community Development Director - 949-644-3232,
sjurjis@newportbeachca.gov
PREPARED BY: Matt Schneider, Principal Planner
PHONE: 949-644-3219, mschneider@newportbeachca.gov
TITLE: Ordinance No. 2022-12: LCP Amendment Related to Tattoo
Establishments (PA2020-030)
ABSTRACT:
On December 14, 2021, the City Council adopted an amendment to Title 20 (Planning
and Zoning) of the Newport Beach Municipal Code (NBMC) updating development
standards related to tattoo establishments. Specifically, the amendment defined this
previously undefined land use category and established objective standards to regulate
its use. Additionally, the City Council adopted a resolution authorizing submittal of the
amendment to NBMC Title 21 (Local Coastal Program Implementation Plan) to the
California Coastal Commission on November 30, 2021. On March 9, 2022, the California
Coastal Commission approved LCP Amendment No. LC2020-002 with no modifications.
For the City Council's consideration is an ordinance adopting Local Coastal Program
(LCP) Amendment No. LC2020-002 and revising Title 21 consistent with the California
Coastal Commission approval.
RECOMMENDATION:
a) Find this amendment exempt pursuant to California Environmental Quality Act
(CEQA) Guidelines Section 15061(b)(3), and Section 15265(a)(1), because it has no
potential to have a significant effect on the environment and local governments are
exempt from the requirements of CEQA in connection with the adoption of a Local
Coastal Program; and
b) Waive full reading, direct the City Clerk to read by title only, introduce Ordinance
No. 2022-12, An Ordinance of the City Council of the City of Newport Beach,
California, Amending Title 21 (Local Coastal Program Implementation Plan) of the
Newport Beach Municipal Code and Adopting Local Coastal Program Amendment
No. LC2020-002 Related to Tattoo Establishment Development Standards (PA2020-
030), and pass to second reading on May 10, 2022.
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Ordinance No. 2022-12: LCP Amendment Related to
Tattoo Establishments (PA2020-030)
April 26, 2022
Page 2
DISCUSSION:
Over the past decade, cities have seen a rapid increase in the number of tattoo
establishments given the rise in popularity of tattooing. Many cities have adopted zoning
ordinances related to the use ranging from an all-out ban to requiring a conditional use
permit with conditions to mitigate impacts associated with the use. In Newport Beach's
case, Titles 20 (Planning and Zoning) and 21 (Local Coastal Program Implementation
Plan) of the NBMC classified tattoo businesses as a Restricted Personal Service, which
is permitted in all office zones, commercial zones (except the CM zone) and mixed-use
zones subject to a minor use permit (MUP). An MUP is a discretionary permit requiring a
public hearing and is appealable to the Planning Commission and ultimately to the City
Council.
Over time, prospective operators have challenged cities' zoning codes applicable to tattoo
establishments on the basis that tattooing is protected speech under the First Amendment
of the United States Constitution (First Amendment). Two Ninth Circuit federal court
decisions determined that tattooing constitutes speech such that it is protected under the
First Amendment. These decisions limit a local jurisdiction's ability to require discretionary
permit approval for this protected class of free speech; however, cities may apply time,
place and manner restrictions through the application of objective standards such as
hours of operation, separation requirements and appropriate zoning districts for new
applications.
On December 12, 2021, the City Council adopted Ordinance No. 2021-27 (attachment
C), amending Title 20 (Planning and Zoning) of the NBMC to allow ministerial approval of
tattoo establishments in commercial zones of the City subject to separate requirements
and other development and operational standards. The amendment serves the objectives
of creating reasonable time, place and manner restrictions as required by the First
Amendment while also ensuring tattoo establishments are compatible with the
surrounding area, do not result in an overconcentration, and maintain the quality and
character of the community.
On November 30, 2021, the City Council also adopted Resolution No. 2021-127
(Attachment C), authorizing submittal of the amendment to NBMC Title 21 (Local Coastal
Program Implementation Plan) to the California Coastal Commission. Specifically, the
amendment would define tattoo establishments as its own use separate and distinct from
other Restricted Personal Service Use types and modify relevant tables demonstrating
the coastal zoning districts where tattoo establishments are permitted. The November 30,
2021 City Council staff report is included as Attachment D for reference.
California Coastal Commission Action
On March 9, 2022, the California Coastal Commission approved LCP Amendment
No. LC2020-002 with no modifications (Attachment E). As a result, the amendment is now
considered deemed approved and became a certified part of the City's Local Coastal
Program on March 9, 2022; however, full implementation requires the adoption of the
recommended ordinance.
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Ordinance No. 2022-12: LCP Amendment Related to
Tattoo Establishments (PA2020-030)
April 26, 2022
Page 3
FISCAL IMPACT:
There is no fiscal impact related to this item.
ENVIRONMENTAL REVIEW:
The action proposed herein is not a project subject to CEQA in accordance with Section
21065 of CEQA and State CEQA Guidelines Sections 15060(c)(2), 15060(c)(3) and
15378. While this amendment would allow tattoo establishments as an allowed use within
the City, it does not authorize new development that would directly result in physical changes
to the environment. There is no evidence that amending the regulations for tattoo
establishments would result in any new effects on the environment. Additionally, pursuant
to CEQA Guidelines Section 15265(a)(1), local governments are exempt from the
requirements of CEQA in connection with the adoption of a Local Coastal Program.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
Notice of the October 12, 2021, City Council hearing where this amendment was originally
considered and approved for submittal to the California Coastal Commission was
published in the Daily Pilot as an eighth -page advertisement, consistent with the
provisions of the NBMC and was sent to the property owners of the five existing tattoo
establishments currently operating in the City.
Lastly, pursuant to Section 13515 of the California Code of Regulations, a review draft of
the LCP Amendment was made available and a Notice of Availability was distributed on
September 28, 2021, to all persons and agencies on the Notice of Availability mailing list.
ATTACHMENTS:
Attachment A — Ordinance No. 2022-12
Attachment B —Ordinance No. 2021-27 (Title 20)
Attachment C — Resolution No. 2021-127
Attachment D — November 30, 2021 City Council Staff Report
Attachment E —Coastal Commission Approval Letter
5-3
Attachment A
Ordinance No. 2022-12
5-4
ORDINANCE NO. 2022-12
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, AMENDING
TITLE 21 (LOCAL COASTAL PROGRAM
IMPLEMENTATION PLAN) OF THE NEWPORT BEACH
MUNICIPAL CODE AND ADOPTING LOCAL COASTAL
PROGRAM AMENDMENT NO. LC2020-002 RELATED
TO TATTOO ESTABLISHMENT DEVELOPMENT
STANDARDS (PA2020-030)
WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the
City Council with the authority to make and enforce all laws, rules and regulations with
respect to municipal affairs subject only to the restrictions and limitations contained in
the Charter and the State Constitution, and the power to exercise, or act pursuant to
any and all rights, powers, and privileges or procedures granted or prescribed by any
law of the State of California;
WHEREAS, Section 30500 of the California Public Resources Code requires
each county and city to prepare a local coastal program for that portion of the coastal
zone within its jurisdiction;
WHEREAS, in 2005, the City adopted the City of Newport Beach Local Coastal
Program Coastal Land Use Plan ("LCP") as amended from time to time;
WHEREAS, the California Coastal Commission effectively certified the City's
Local Coastal Program Implementation Plan on January 13, 2017, which the City added
as Title 21 (Local Coastal Program Implementation Plan) ("Title 21") to the City of
Newport Beach Municipal Code ("NBMC") whereby the City assumed coastal
development permit -issuing authority;
WHEREAS, both Title 20 (Planning and Zoning) ("Title 20") and Title 21 of the
NBMC authorize Restricted Personal Service uses which includes day spas, healing
arts, tanning salons, tattoo and body piercing establishments in office, commercial (with
the exception of the Commercial Recreational and Marine [CM] zone), and mixed-use
zones subject to approval of a minor use permit;
WHEREAS, on April 14, 2020, the City Council initiated LCP Amendment No.
LC2020-002 pursuant to City Council Resolution No. 2020-35;
5-5
Ordinance No. 2022 -
Page 2 of 6
WHEREAS, pursuant to Section 13515 (Public Participation and Agency
Coordination Procedures) of the California Code of Regulations, Title 14, Division 5.5,
Chapter 8, drafts of LCP Amendment No. LC2020-002 were made available and a
Notice of the Availability was distributed a minimum of six weeks prior to the City
Council public hearing;
WHEREAS, a telephonic public hearing was held by the Planning Commission on
May 6, 2021, in the Council Chambers located at 100 Civic Center Drive, Newport Beach,
California, observing restrictions due to the Declaration of a State Emergency and
Proclamation of Local Emergency related to COVID-19. A notice of time, place and
purpose of the public hearing was given in accordance with the California Government
Code Section 54950 et seq. ("Ralph M. Brown Act") and Chapters 20.62 and 21.62
(Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and
considered by, the Planning Commission at this public hearing,
WHEREAS, at the hearing, the Planning Commission voted (7 ayes, 0 nays) to
continue the item to allow staff additional time to research and respond to the
Commission's questions;
WHEREAS, a public hearing was held by the Planning Commission on July 22,
2021, in the Council Chambers located at 100 Civic Center Drive, Newport Beach,
California. A notice of time, place and purpose of the public hearing was given in
accordance with the Ralph M. Brown Act and Chapters 20.62 and 21.62 (Public
Hearings) of the NBMC. Evidence, both written and oral, was presented to, and
considered by, the Planning Commission at this public hearing;
WHEREAS, at the hearing, the Planning Commission adopted Resolution Nos.
PC2020-018 and PC2020-019 by a unanimous vote (5 ayes, 0 nays) recommending to
the City Council approval of Zoning Code Amendment No. CA2020-002 and LCP
Amendment No. LC2020-002;
WHEREAS, a public hearing was held by the City Council on November 30, 2021,
in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A
notice of time, place and purpose of the public hearing was given in accordance with the
Ralph M. Brown Act, Chapters 20.62 and 21.62 (Public Hearings) of the NBMC and 14
CCR Section 13515. Evidence, both written and oral, was presented to, and considered
by, the City Council at this public hearing;
5-6
Ordinance No. 2022 -
Page 3 of 6
WHEREAS, at the hearing, the City Council introduced Ordinance No. 2021-27
adopting Zoning Code Amendment No. CA2020-002 and Resolution No. 2021-127
authorizing submittal of LCP Amendment No. LC2020-002 to the California Coastal
Commission by a unanimous vote (7 ayes, 0 nays); and
WHEREAS, on March 9, 2022, the California Coastal Commission approved LCP
Amendment No. LC2020-002 (LCP-5-NPB-21-0084-3 Part B) with no modifications, as
a result, LCP Amendment No. LC2020-002 is now deemed approved and became a
certified part of Title 21.
NOW THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: Table 21.20-1 in Section 21.20.020(C) (Commercial Coastal Zoning
Districts Land Uses) of Chapter 21.20 (Commercial Coastal Zoning Districts (CC, CG,
CM, CN, CV, CV -LV, OG) of Title 21 of the Newport Beach Municipal Code is hereby
amended, in part to the "Tattoo Establishments" row as follows:
Section 2: The definition of "Personal Services (Land Use)" in Section
21.70.020 (Definitions of Specialized Terms and Phrases) of Chapter 21.70 (Definitions)
of Title 21 of the Newport Beach Municipal Code is hereby amended to read as follows,
with all other provisions of Chapter 21.70 (Definitions) remaining unchanged:
Personal Services (Land Use).
1. General. Establishments that provide recurrently needed services of a personal
nature. Illustrative examples of these uses include:
a. Barber and beauty shops.
b. Clothing rental shops.
5-7
Commercial Coastal Zoning Districts
TABLE 21.20-1
A
Allowed
ALLOWED USES
—
Not Allowed
Land Use
See Part 7 of this Implementation Plan for
CM
Cv
v
Specific Use
land use definitions.
CC
CG
(3)
CN
(3)
OG
Regulations
(3)
See Chapter 21.12 for unlisted uses.
Service Uses—General
Tattoo Establishments
—
A
—
-- —
—
A
Section 2: The definition of "Personal Services (Land Use)" in Section
21.70.020 (Definitions of Specialized Terms and Phrases) of Chapter 21.70 (Definitions)
of Title 21 of the Newport Beach Municipal Code is hereby amended to read as follows,
with all other provisions of Chapter 21.70 (Definitions) remaining unchanged:
Personal Services (Land Use).
1. General. Establishments that provide recurrently needed services of a personal
nature. Illustrative examples of these uses include:
a. Barber and beauty shops.
b. Clothing rental shops.
5-7
Ordinance No. 2022 -
Page 4 of 6
C. Dry cleaning pick-up stores with limited equipment.
d. Laundromats (self-service laundries).
e. Locksmiths.
f. Shoe repair shops.
g. Tailors and seamstresses.
These uses may also include accessory retail sales of products related to the
services provided.
2. Restricted. Personal service establishments that may tend to have a blighting
and/or deteriorating effect upon surrounding areas and that may need to be
dispersed from other similar uses to minimize adverse impacts, including:
a. Day spas.
b. Healing arts (acupuncture, aromatherapy, etc.) with no services qualifying
under "Massage establishments."
c. Tanning salons.
d. Body piercing studios.
These uses may also include accessory retail sales of products related to the
services provided.
Section 3: The definition of "Tattoo Establishment (land use)" is hereby added
to Section 21.70.020 (Definitions of Specialized Terms and Phrases) of Chapter 21.70
(Definitions) of Title 21 of the Newport Beach Municipal Code to read as follows:
"Tattoo Establishment (land use)" means a business where the insertion of pigment, ink
or dye is applied under the surface of the skin by a person pricking with a needle or
otherwise, to permanently change the color or appearance of the skin or to produce an
indelible mark or figure visible through the skin in exchange for financial or other
valuable consideration. It does not include the application of permanent make-up that is
performed as an incidental service in a beauty shop, day spa, or dermatology office.
100
Ordinance No. 2022 -
Page 5 of 6
Section 4: The LCP and Title 21, including LCP Amendment No. LC2020-002,
shall be carried out in full conformance with the California Coastal Act.
Section 5: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
Section 6: If any section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this ordinance. The
City Council hereby declares that it would have passed this ordinance and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
Section 7: The City Council finds LCP Amendment No. LC2020-002 is not
subject to the California Environmental Quality Act ("CEQA") pursuant to Section
15061(b)(3), of Title 14, Division 6, Chapter 3 of the California Code of Regulations
("CEQA Guidelines"), the general rule that CEQA applies only to projects, which have
the potential for causing a significant effect on the environment. LCP Amendment No.
LC2020-002 would allow tattoo establishments as a permitted use within the City. LCP
Amendment No. LC2020-002 does not authorize new development that would directly
result in physical changes to the environment. There is no evidence that amending the
regulations for tattoo establishments would result in any new effects on the environment.
Additionally, pursuant to CEQA Guidelines Section 15265(a)(1), local governments are
exempt from the requirements of CEQA in connection with the adoption of a LCP.
Section 8: Except as expressly modified in this ordinance, all other sections,
subsections, terms, clauses and phrases set forth in the NBMC shall remain unchanged
and shall be in full force and effect.
Section 9: The Mayor shall sign and the City Clerk shall attest to the passage
of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be
published pursuant to City Charter Section 414.
5-9
Ordinance No. 2022 -
Page 6 of 6
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the 26th day of April, 2022, and adopted on the 10th day of
May, 2022, by the following vote, to -wit:
AYES.-
NAYS:
YES:
NAYS:
ABSENT:
KEVIN MULDOON, MAYOR
ATTEST:
LEILANI I. BROWN, CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
f C. .."
AA ON C. HARP, CITY ATTORNEY
5-10
Attachment 6
Ordinance No. 2021-27 (Title 20)
5-11
ORDINANCE NO. 2021-27
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, ADOPTING ZONING
CODE AMENDMENT NO. CA2020-002 TO AMEND TITLE 20
(PLANNING AND ZONING) OF THE NEWPORT BEACH
MUNICIPAL CODE RELATED TO TATTOO
ESTABLISHMENT DEVELOPMENT STANDARDS (PA2020-
030)
WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the
City Council with the authority to make and enforce all laws, rules and regulations with
respect to municipal affairs subject only to the restrictions and limitations contained in the
Charter and the State Constitution, and the power to exercise, or act pursuant to any and
all rights, powers, and privileges, or procedures granted or prescribed by any law of the
State of California;
WHEREAS, Title 20 (Planning and Zoning) of the Newport Beach Municipal Code
("NBMC") authorizes Restricted Personal Service uses which includes day spas, healing
arts, tanning salons, tattoo and body piercing establishments in office, commercial (with
the exception of the Commercial Recreational and Marine zone), and mixed-use zones
subject to approval of a minor use permit;
WHEREAS, two 9th Circuit opinions struck the City of Hermosa Beach's ban on
tattoo establishments based upon the risk of infection' and the City of Long Beach's
conditional use permit requirement for the establishment of a tattoo parlor as violating
the First Amendment of the U.S. Constitution;
WHEREAS, the 9th Circuit decisions limit a local jurisdiction's ability to require
discretionary permits approval for this protected class of free speech, however, cities may
apply time, place and manner restrictions through the application of objective standards
such as hours of operation, separation requirements and appropriate zoning districts for
new applications;
WHEREAS, on April 14, 2020, the City Council adopted Resolution No. 2020-35
to initiate a code amendment related to tattoo services ("ZCA No. CA2020-002");
Anderson v. City of Hermosa Beach, (2010) 621 F.3d 1051.
2 Real v. City of Long Beach, (2017) 852 F.3d 929.
5-12
Ordinance No. 2021-27
Page 2 of 4
WHEREAS, a telephonic public hearing was held by the Planning Commission on
May 6, 2021, in the Council Chambers located at 100 Civic Center Drive, Newport Beach,
California, observing restrictions due to the Declaration of a State Emergency and
Proclamation of Local Emergency related to COVID-19. A notice of time, place and
purpose of the public hearing was given in accordance with the California Government
Code Section 54950 et seq. ("Ralph M. Brown Act") and Chapter 20.62 (Public Hearings)
of the NBMC. Evidence, both written and oral, was presented to, and considered by, the
Planning Commission at this public hearing;
WHEREAS, after receiving a presentation from staff and discussing the item the
Planning Commission voted (7-0) to continue the item to allow staff additional time to
research and respond to Planning Commission's questions;
WHEREAS, a public hearing was held by the Planning Commission on July 22,
2021, in the Council Chambers located at 100 Civic Center Drive, Newport Beach,
California. A notice of time, place and purpose of the public hearing was given in
accordance with the Ralph M. Brown Act and Chapter 20.62 (Public Hearings) of the
NBMC. Evidence, both written and oral, was presented to, and considered by, the
Planning Commission at this public hearing. At the conclusion of the public hearing and
after deliberations, the Planning Commission adopted Resolution Nos. PC2021-018 and
PC2021-019; recommending the City Council adopt ZCA No. CA -2020-002; and
WHEREAS, a public hearing was held by the City Council on November 30, 2021,
in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A
notice of time, place and purpose of the public hearing was given in accordance with the
Ralph M. Brown Act and Chapter 20.62 of the NBMC. Evidence, both written and oral,
was presented to, and considered by, the City Council at this public hearing.
NOW THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: The City Council does herby approve ZCA No.CA2020-02 to amend
Title 20 (Planning and Zoning) of the NBMC updating development standards for tattoo
establishments, attached hereto as Exhibit "A" and incorporated herein by reference.
Section 2: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
5-13
Ordinance No. 2021-27
Page 3 of 4
Section 3: If any section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this ordinance. The City
Council hereby declares that it would have passed this ordinance and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
Section 4: The City Council finds the introduction and adoption of this ordinance
is categorically exempt from the California Environmental Quality Act ("CEQA") pursuant
to CEQA Guidelines Section 15061(b)(3), the general rule that CEQA applies only to
projects, which have the potential for causing a significant effect on the environment.
While this amendment would allow tattoo establishments as a permitted use within the
City, it does not authorize new development that would directly result in physical changes
to the environment. There is no evidence or known special circumstances that amending
the regulations for tattoo establishments would result in any new effects on the
environment.
Section 5: Except as expressly modified in this ordinance, all other sections,
subsections, terms, clauses and phrases set forth in the Newport Beach Municipal Code
shall remain unchanged and shall be in full force and effect.
5-14
Ordinance No. 2021-27
Page 4 of 4
Section 6: The Mayor shall sign and the City Clerk shall attest to the passage
of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be
published pursuant to City Charter Section 414. This ordinance shall be effective thirty
(30) calendar days after its adoption.
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the 30th day of November, 2021, and adopted on the 14th day
of December, 2021, by the following vote, to -wit:
AYES: Mayor Avery, Mayor Pro Tem Muldoon Council Member Blom Council
Member Brenner, Council Member Dixon Council Member Duffield
Council Member O'Neill
NAYS:
ABSENT:
1//�' 4';O� [
BRA RY, MAYOR
ATTEST:
LEILANI I. BROWN, CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
P C_,_"
AARON C. HARP, CITY ATTORNEY
Attachment(s): Exhibit A — Zoning Code Amendment No. CA2020-02
5-15
Exhibit A
Page 1 of 4
EXHIBIT A
Zoning Code Amendment No. CA2020-02
Section 1: Tables 2-4 and 2-5 (Allowed Uses and Permit Requirements) of
Section 20.20.020(C) (Commercial Zoning Districts Land Uses and Permit Requirements)
of the NBMC are amended to add "Tattoo Establishments" under Service Uses - General
with all other portions of Tables 2-4 and 2-5 remaining unchanged:
Section 2: Section 20.48.230 (Standards for Specific Land Uses — Tattoo
Establishments) of the NBMC is added to read as follows:
5-16
Commercial Office Zoning Districts
Permit Requirements
P
Permitted by Right
ALLOWED USES AND PERMIT
TABLE 2-4
REQUIREMENTS
Conditional Use Permit
ALLOWED USES AND PERMIT REQUIREMENTS
CUP
(Section 20.52.020)
— Not allowed
MUP
Minor Use Permit (Section 20.52.020)
LTP
Limited Term Permit (Section 20.52.040)
—
Not allowed
Land Use
CC
CG
CM
CN
CV
See Part 7 of this title for land use definitions.
OA
OG
OM
OR
Specific Use
See Chapter 20.12 for unlisted uses.
Regulations
See Chapter 20.12 for unlisted uses.
Regulations
Service Uses—General
Tattoo Establishments
—
P
I —
I P
Section 20.48.230
Section 2: Section 20.48.230 (Standards for Specific Land Uses — Tattoo
Establishments) of the NBMC is added to read as follows:
5-16
Commercial Retail Zoning Districts
Permit Requirements
P Permitted by Right
TABLE 2-5
ALLOWED USES AND PERMIT
CUP Conditional Use Permit (Section 20.52.020)
REQUIREMENTS
MUP Minor Use Permit (Section 20.52.020)
LTP Limited Term Permit (Section 20.52.040)
— Not allowed
Land Use
See Part 7 of this title for land use definitions.
CC
CG
CM
CN
CV
CV -LV
Specific Use
Regulations
See Chapter 20.12 for unlisted uses.
Service Uses—General
Tattoo Establishments
T—
I P
—
—
—
—
Section
20.48.230
Section 2: Section 20.48.230 (Standards for Specific Land Uses — Tattoo
Establishments) of the NBMC is added to read as follows:
5-16
Exhibit A
Page 2 of 4
A. Development Standards.
1. Zoning Districts. Tattoo establishments are authorized within the
Commercial Zoning Districts identified in Chapter 20.20 (Commercial
Zoning Districts (OA, OG, OM, OR, CC, CG, CM, CN, CV, CV -LV)).
2. Site and Floor Plans. The site and floor plans shall incorporate design
features to ensure the activities and operation, including seating and waiting
areas, are conducted entirely within the building or structure.
3. Parking. Parking shall comply with Chapter 20.40 (Off -Street Parking). The
"Personal Services, General" parking requirement set forth in Table 3-10
(20.40.040 Off Street Parking Spaces Required) shall apply to all tattoo
establishments
4. Signs. Signs shall comply with Chapter 20.42 (Sign Standards). In addition,
a sign shall be visible at all entrances stating, "No tattoo service will be
provided for any person under the age of 18."
5. Location Restrictions. Tattoo establishments shall maintain the following
separation requirements:
i. One thousand (1,000) feet from another tattoo establishment;
ii. Five hundred (500) feet from any primary or secondary school or
park or playground as measured from lot line to lot line; and
iii. Five hundred (500) feet from the boundary of any residential
structure or residential use, including residential uses in mixed-use
zoning districts excluding legal non -conforming residential properties
within the Santa Ana Heights Specific Plan
B. Operating Standards.
1. Hours of Operation. Operating hours shall be limited to 10:00 a.m. to 10:00
p.m. scheduled by appointment only. No walk-ins shall be accepted.
2. Maintenance. The owner or operator shall:
i. Maintain the exterior of the premises free of litter and graffiti at all
times; and
ii. Provide for daily removal of trash, litter, debris and graffiti from the
premises and abutting sidewalks within twenty (20) feet of the
premises.
3. Noise. The owner or operator shall be responsible for the control of noise
generated by the tattoo establishment. All noise generated by the use shall
comply with the provisions of Chapter 10.26 (Community Noise Control)
and other applicable noise control requirements of the Newport Beach
Municipal Code.
4. Security. The owner or operator shall maintain security cameras covering
all entrances and exits to/from the establishment, the public right-of-way
fronting the establishment and the parking facility serving the
establishment. The recording shall be retained for no less than thirty (30)
days and shall be made available to the Police Department upon request.
5. Consumption. The service or use of alcohol or marijuana shall be prohibited.
Clients, guests, visitors, or staff shall not smoke within twenty (20) feet of
the premises.
5-17
Exhibit A
Page 3 of 4
6. Screening. All tattoo services shall be screened so as not to be visible to
the exterior of the business.
C. Other Licenses and Permits. The owner or operator shall comply with all applicable
State, County and City Health and Human Services regulations including, but not
limited to the State Safe Body Art Act regarding the establishment and operation of
businesses engaged in tattooing, body piercing and permanent cosmetic application.
Each artist shall be registered and licensed with the Orange County Health
Department. Said license shall be made available upon request of the City's Code
Enforcement Division at any time.
Section 3: The definition of "Personal Services (Land Use)" in Section
20.70.020 (Definitions of Specialized Terms and Phrases) of the NBMC is amended to
revise the definition of "Personal Services (Land Use)" and add the definition of "Tattoo
Establishment" to read as follows:
Personal Services (land use).
1. General. Establishments that provide recurrently needed services of a personal
nature. Illustrative examples of these uses include:
a. Barber and beauty shops.
b. Clothing rental shops.
c. Dry cleaning pick-up stores with limited equipment.
d. Laundromats (self-service laundries).
e. Locksmiths.
f. Shoe repair shops.
g. Tailors and seamstresses.
These uses may also include accessory retail sales of products related to the services
provided.
2. Restricted. Personal service establishments that may tend to have a blighting
and/or deteriorating effect upon surrounding areas and that may need to be dispersed
from other similar uses to minimize adverse impacts, including:
a. Day spas.
b. Healing arts (acupuncture, aromatherapy, etc.) with no services qualifying
under "Massage establishments."
5-18
Exhibit A
Page 4of4
c. Tanning salons.
d. Body piercing studios.
These uses may also include accessory retail sales of products related to the services
provided.
Section 4: The definition of "Tattoo Establishment (land use)" is added to
Section 20.70.020 (Definition of Specialized Terms) to read as follows:
"Tattoo Establishment (land use)" means an establishment where the insertion of
pigment, ink or dye is applied under the surface of the skin by a person pricking with a
needle or otherwise, to permanently change the color or appearance of the skin or to
produce an indelible mark or figure visible through the skin in exchange for financial or
other valuable consideration. It does not include the application of permanent make-up
that is performed as an incidental service in a beauty shop, day spa, or dermatology office.
5-19
STATE OF CALIFORNIA
COUNTY OF ORANGE ss.
CITY OF NEWPORT BEACH
I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the
whole number of members of the City Council is seven, that the foregoing ordinance, being Ordinance
No. 2021-27 was duly introduced on the 301h day of November, 2021, at a regular meeting, and adopted
by the City Council at a regular meeting duly held on the 141h day of December, 2021, and that the same
was so passed and adopted by the following vote, to wit:
AYES: Mayor Brad Avery, Mayor Pro Tem Kevin Muldoon, Council Member Noah Blom,
Council Member Joy Brenner, Council Member Diane Dixon, Council Member
Duffy Duffield, Council Member Will O'Neill
NAYS: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of
said City this 1511 day of December, 2021.
STATE OF CALIFORNIA }
COUNTY OF ORANGE }
CITY OF NEWPORT BEACH }
Leilani I. Brown, MMC
City Clerk
City of Newport Beach, California
CERTIFICATE OF PUBLICATION
ss.
I, LEILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify that
Ordinance No. 2021-27 has been duly and regularly published according to law and the order of the City
Council of said City and that same was so published in The Daily Pilot, a newspaper of general circulation
on the following dates:
Introduced Ordinance: December 4, 2021
Adopted Ordinance: December 18, 2021
In witness whereof, I have hereunto subscribed my name this day of , 202_.
Leilani I. Brown, MMC
City Clerk
City of Newport Beach, California
5-20
Attachment C
Resolution No. 2021-127
5-21
RESOLUTION NO. 2021-127
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, TO AUTHORIZE
SUBMITTAL OF LOCAL COASTAL PROGRAM
AMENDMENT NO. LC2020-002 TO THE CALIFORNIA
COASTAL COMMISSION TO AMEND TITLE 21 (LOCAL
COASTAL PROGRAM IMPLEMENTATION PLAN) OF THE
NEWPORT BEACH MUNICIPAL CODE RELATED TO
TATTOO ESTABLISHMENT DEVELOPMENT STANDARDS
(PA2020-030)
WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the
City Council with the authority to make and enforce all laws, rules and regulations with
respect to municipal affairs subject only to the restrictions and limitations contained in the
Charter and the State Constitution, and the power to exercise, or act pursuant to any and
all rights, powers and privileges, or procedures granted or prescribed by any law of the
State of California;
WHEREAS, Section 30500 of the California Public Resources Code requires each
county and city to prepare a local coastal program ("LCP") for the portion of the coastal
zone within its jurisdiction;
WHEREAS, in 2005, the City of Newport Beach ("City") adopted the City of
Newport Beach Local Coastal Program Coastal Land Use Plan ("Local Coastal Program")
as amended from time to time including most recently on September 14, 2021, via
Resolution No. 2021-79;
WHEREAS, the California Coastal Commission effectively certified the City's Local
Coastal Program Implementation Plan on January 13, 2017, and the City added Title 21
(Local Coastal Program Implementation Plan) ("Title 21 ") to the Newport Beach Municipal
Code ("NBMC") whereby the City assumed coastal development permit -issuing authority
as of January 30, 2017;
WHEREAS, Title 20 (Planning and Zoning) and Title 21 (Local Coastal Program
Implementation Plan) of the NBMC authorize Restricted Personal Service uses which
includes day spas, healing arts, tanning salons, tattoo and body piercing establishments
in office, commercial (with the exception of the Commercial Recreational and Marine
zone), and mixed-use zones subject to approval of a minor use permit;
5-22
Resolution No. 2021-127
Page 2 of 5
WHEREAS, two 9th Circuit opinions struck the City of Hermosa Beach's ban on
tattoo establishments based upon the risk of infection' and the City of Long Beach's
conditional use permit requirement for the establishment of a tattoo parlor as violating
the First Amendment of the U.S. Constitution;
WHEREAS, the 9th Circuit decisions limit a local jurisdiction's ability to require
discretionary permits for this protected class of free speech, however, cities may apply
time, place and manner restrictions through the application of objective standards such
as hours of operation, separation requirements and appropriate zoning districts for new
applications;
WHEREAS, on April 14, 2020, the City Council adopted Resolution No. 2020-35
to initiate a code amendment related to tattoo services ("LCP Amendment No. LC2020-
002");
WHEREAS, pursuant to Section 13515 (Public Participation and Agency
Coordination Procedures) of the California Code of Regulations, Title 14, Division 5.5,
Chapter 8, review of the draft LCP Amendment No. LC2020-002 was made available and
a Notice of the Availability was distributed on September 28, 2021, which is a minimum
of six weeks prior to the final action date;
WHEREAS, a telephonic public hearing was held by the Planning Commission on
May 6, 2021, in the Council Chambers located at 100 Civic Center Drive, Newport Beach,
California, observing restrictions due to the Declaration of a State Emergency and
Proclamation of Local Emergency related to COVID-19. A notice of time, place and
purpose of the public hearing was given in accordance with the California Government
Code Section 54950 et seq. ("Ralph M. Brown Act") and Chapter 21.62 (Public Hearings)
of the NBMC. Evidence, both written and oral, was presented to, and considered by, the
Planning Commission at this public hearing;
WHEREAS, after receiving a presentation from staff and discussing the item, the
Planning Commission voted (7-0) to continue the item to allow staff additional time to
research and respond to the Planning Commission's questions;
Anderson v. City of Hermosa Beach, (2010) 621 F.3d 1051.
2 Real v. City of Long Beach, (2017) 852 F.3d 929.
5-23
Resolution No. 2021-127
Page 3 of 5
WHEREAS, a public hearing was held by the Planning Commission on July 22,
2021, in the Council Chambers located at 100 Civic Center Drive, Newport Beach,
California. A notice of time, place and purpose of the public hearing was given in
accordance with the Ralph M. Brown Act and Chapter 21.62 (Public Hearings) of the
NBMC. Evidence, both written and oral, was presented to, and considered by, the
Planning Commission at this public hearing. At the conclusion of the public hearing and
after deliberations, the Planning Commission adopted Resolution Nos. PC2021-018 and
PC2021-019; recommending the adoption of LCP Amendment No. 2020-002; and
WHEREAS, a public hearing was held by the City Council on November 30, 2021,
in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A
notice of time, place and purpose of the public hearing was given in accordance with the
Ralph M. Brown Act and Chapter 21.62 of the NBMC. Evidence, both written and oral
was presented to, and considered by, the City Council at this public hearing.
NOW THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: The City Council does hereby authorize submittal of LCP Amendment
No. LC2020-002 to amend Section 21.20.020(C) (Commercial Coastal Zoning Districts
Land Uses) and Section 21.70.020 (Definitions of Specialized Terms and Phrases) of Title
21 (Local Coastal Program Implementation Plan) of the NBMC as set forth in Exhibit "A,"
which is attached hereto and incorporated herein by reference, to the California Coastal
Commission.
Section 2: LCP Amendment No. 2020-002 shall not become effective until
approval by the California Coastal Commission and adoption, including any modifications
suggested by the California Coastal Commission, by resolution and/or ordinance of the City
Council of the City of Newport Beach.
Section 3: The recitals provided in this resolution are true and correct and are
incorporated into the operative part of this resolution.
Section 4: The Local Coastal Program Coastal Land Use Plan and Title 21
(Local Coastal Program Implementation Plan), including LCP Amendment No. 2020-002,
if approved, will be carried out fully in conformity with the California Coastal Act.
5-24
Resolution No. 2021-127
Page 4 of 5
Section 5: If any section, subsection, sentence, clause or phrase of this
resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this resolution. The City
Council hereby declares that it would have passed this resolution, and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
Section 6: The City Council finds the introduction and adoption of this resolution
is exempt pursuant to California Environmental Quality Act ("CEQA") Guidelines Section
15061(b)(3), the general rule that CEQA applies only to projects, which have the potential
for causing a significant effect on the environment. While LCP Amendment No. LC2020-
0002 would allow tattoo establishments as a permitted use within the City, it does not
authorize new development that would directly result in physical changes to the
environment. There is no evidence that amending the regulations for tattoo establishments
would result in any new effects on the environment. Additionally, pursuant to CEQA
Guidelines Section 15265(a)(1) local governments are exempt from the requirements of
CEQA in connection with the adoption of an LCP.
5-25
Resolution No. 2021-127
Page 5 of 5
Section 7: This resolution shall take effect immediately upon its adoption by the
City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 30th day of November 2021.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
GtrL
Aarbn C. arp
City Attorney
Attachment(s): Exhibit A: Local Coastal Program Amendment No. LC2020-002
(PA2020-030)
5-26
Exhibit A
Page 1 of 2
EXHIBIT A
Proposed Local Coastal Program Amendment No. LC2020-002
related to Tattoo Establishment Development Standards (PA2020-030)
Section 1: Table 21.20-1 in Newport Beach Municipal Code ("NBMC") Section
21.20.020(C) (Commercial Coastal Zoning Districts Land Uses) is amended to add
"Tattoo Establishments" under Service Uses — General to read as follows with all other
portions of Table 21.20-1 remaining unchanged:
Section 2: The definition of "Personal Services (Land Use)" in Section
21.70.020 of the NBMC (Definitions of Specialized Terms and Phrases) is amended to
read as follows, with all other provisions of Chapter 21.70 remaining unchanged:
Personal Services (land use).
1. General. Establishments that provide recurrently needed services of a personal
nature. Illustrative examples of these uses include:
a. Barber and beauty shops.
b. Clothing rental shops.
c. Dry cleaning pick-up stores with limited equipment.
d. Laundromats (self-service laundries).
e. Locksmiths.
f. Shoe repair shops.
g. Tailors and seamstresses.
5-27
Commercial Coastal Zoning Districts
TABLE 21.20-1
A
Allowed
ALLOWED USES
—
Not Allowed
Land Use
See Part 7 of this Implementation Plan for
CM
Cv
CV
Specific Use
land use definitions.
CC
CG
(3)
CN
(3)
LV
OG
Regulations
See Chapter 21.12 for unlisted uses.
Service Uses—General
Tattoo Establishments
—
A
I —
—
—
—
A
Section 2: The definition of "Personal Services (Land Use)" in Section
21.70.020 of the NBMC (Definitions of Specialized Terms and Phrases) is amended to
read as follows, with all other provisions of Chapter 21.70 remaining unchanged:
Personal Services (land use).
1. General. Establishments that provide recurrently needed services of a personal
nature. Illustrative examples of these uses include:
a. Barber and beauty shops.
b. Clothing rental shops.
c. Dry cleaning pick-up stores with limited equipment.
d. Laundromats (self-service laundries).
e. Locksmiths.
f. Shoe repair shops.
g. Tailors and seamstresses.
5-27
Exhibit A
Page 2 of 2
These uses may also include accessory retail sales of products related to the services
provided.
2. Restricted. Personal service establishments that may tend to have a blighting and/or
deteriorating effect upon surrounding areas and that may need to be dispersed from other
similar uses to minimize adverse impacts, including:
a. Day spas.
b. Healing arts (acupuncture, aromatherapy, etc.) with no services qualifying
under "Massage establishments."
c. Tanning salons.
d. Body piercing studios.
These uses may also include accessory retail sales of products related to the services
provided.
Section 3: The definition of "Tattoo Establishment (land use)" is added to
Section 21.70.020 (Definition of Specialized Terms) to reads as follows:
"Tattoo Establishment (land use)" means a business where the insertion of pigment,
ink or dye is applied under the surface of the skin by a person pricking with a needle or
otherwise, to permanently change the color or appearance of the skin or to produce an
indelible mark or figure visible through the skin in exchange for financial or other valuable
consideration. It does not include the application of permanent make-up that is performed
as an incidental service in a beauty shop, day spa, or dermatology office.
5-28
STATE OF CALIFORNIA
COUNTY OF ORANGE ss.
CITY OF NEWPORT BEACH
I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the
whole number of members of the City Council is seven, the foregoing resolution, being Resolution
No. 2021-127 was duly introduced before and adopted by the City Council of said City at a regular
meeting of said Council held on the 30th day of November, 2021; and the same was so passed and
adopted by the following vote, to wit:
AYES: Mayor Brad Avery, Mayor Pro Tem Kevin Muldoon, Council Member Noah Blom,
Council Member Joy Brenner, Council Member Diane Dixon, Council Member
Duffy Duffield, Council Member Will O'Neill
NAYS: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of
said City this 1s' day of December, 2021.
444� 1
Leilani I. Brown
City Clerk
Newport Beach, California
5-29
Attachment D
November 30, 2021 City Council Staff Report
5-30
Q �EwPoRT
CITY OF
O y
- z NEWPORT BEACH
<,FoP City Council Staff Report
November 30, 2021
Agenda Item No. 25
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Seimone Jurjis, Community Development Director - 949-644-3232,
sjurjis@newportbeachca.gov
PREPARED BY: Matt Schneider, Principal Planner
mschneider@newportbeachca.gov
PHONE: 949-644-3219
TITLE: Ordinance No. 2021-27: A Code Amendment Related to Tattoo
Establishments (PA2020-030)
ABSTRACT:
For the City Council's consideration are the proposed code amendments to Titles 20
(Planning and Zoning) and 21 (Local Coastal Program Implementation Plan) of the Newport
Beach Municipal Code (NBMC) updating development standards related to tattoo
establishments. The purpose of the code update is to ensure the NBMC is consistent with
both state and case law as it pertains to tattoo establishments. If the City Council approves
the update, the changes will be forwarded to the California Coastal Commission for its
consideration.
RECOMMENDATION:
a) Conduct a public hearing;
b) Find this project categorically exempt from the California Environmental Quality Act
(CEQA) pursuant to pursuant to Section 15061(b)(3), the general rule that CEQA
applies only to projects, which have the potential for causing a significant effect on the
environment and pursuant to Section 15265(a)(1), which exempts local governments
from the requirements of CEQA in connection with the adoption of a Local Coastal
Program;
c) Waive full reading, direct the City Clerk to read by title only, introduce Ordinance No.
2021-27, An Ordinance of the City Council of the City of Newport Beach, California,
Adopting Zoning Code Amendment No. CA2020-002 to Amend Title 20 (Planning and
Zoning) of the Newport Beach Municipal Code Related to Tattoo Establishment
Development Standards (PA2020-030) and pass to second reading on December 14,
2021; and
5-31
Ordinance No. 2021-27: A Code Amendment Related to Tattoo Establishments
(PA2020-030)
November 30, 2021
Page 2
d) Adopt Resolution No. 2021-127, A Resolution of the City Council of the City of Newport
Beach, California, to Authorize Submittal of Local Coastal Program Amendment No.
LC2020-002 to the California Coastal Commission to Amend Title 21 (Local Coastal
Program Implementation Plan) of the Newport Beach Municipal Code Related to the
Tattoo Establishment Development Standards (PA2020-030)
DISCUSSION:
Over the past decade, cities have seen a rapid increase in the number of tattoo
establishments given the rise in popularity of tattooing. In 2011, then Governor Jerry
Brown signed into law, the Safe Board Art Act, which sets uniform standards for the body
art industry, including tattooing. These regulations are codified in California Health and
Safety Code Section 119300 et seq. requiring body art practitioners to complete a
registration process, obtain annual bloodborne pathogen training, provide documentation
of vaccination status, and obtain relevant health information and informed consent from
clients.
Many cities have adopted zoning ordinances related to the use ranging from an all-out
ban to requiring a conditional use permit with conditions to mitigate impacts associated
with the use. In Newport Beach's case, Titles 20 (Planning and Zoning) and 21 (Local
Coastal Program Implementation Plan) of the NBMC classify tattoo businesses as a
Restricted Personal Service, which is permitted in all office zones, commercial zones
(except the CM zone) and mixed-use zones, subject to a minor use permit (MUP). An
MUP is a discretionary permit requiring a public hearing and is appealable to the Planning
Commission and ultimately to the City Council.
Over time, prospective operators have challenged cities' zoning codes applicable to tattoo
establishments on the basis that tattooing is protected speech under the First Amendment
of the United States Constitution (First Amendment).
In Anderson v. City of Hermosa, (91" Cir. 2010) 621 F.3d 1051, a prospective operator
challenged Hermosa Beach's ban on tattoo parlors. The city justified the ban based upon
the risk of infection and the possibility of diseases. At the time, the county health official
responsible for inspecting tattoo establishments testified to being overwhelmed by the
number of inspections required. On appeal, the 91" Circuit overturned the district court's
decision and held that tattoos are purely expressive activity protected under the First
Amendment. The court took a rather expansive view as to what aspects of tattooing were
protected by the First Amendment to include the tattoo itself, the process of tattooing, and
the business of tattooing.
Seven years later, a suit was brought against the City of Long Beach's tattoo ordinance
that required a conditional use permit; separation requirements from adult entertainment,
arcade, fortunetelling, tattoo parlors and taverns; and hours of operation between 7 a.m.
and 10 p.m.
5-32
Ordinance No. 2021-27: A Code Amendment Related to Tattoo Establishments
(PA2020-030)
November 30, 2021
Page 3
Similar to conditional use permit findings in other jurisdictions, the Long Beach Municipal
Code included a finding that the proposed use will not be detrimental to the surrounding
community including public health, safety or general welfare, environmental quality or
quality of life, Real v. City of Long Beach, (91" Cir. 2017) 852 F.3d 929. While the City of
Long Beach argued that the petitioner lacked standing to sue (because they had not
applied for a conditional use permit) and that the ordinance did not restrict speech, but
rather, placed reasonable time, place and manner restrictions on the use. The court
ultimately disagreed. With respect to the standing argument, the court held that when a
licensing ordinance vests unbridled discretion in a government official over whether to
permit or deny expressive activity, a prospective operator has standing to challenge the
ordinance in spite of never having applied for a conditional use permit. With respect to
the City of Long Beach's argument that the ordinance did not unduly restrict expressive
activity, but rather, consisted of time, place and manner restrictions, the court reasoned
that the ordinance was not narrowly tailored to serve a significant governmental interest
and allow ample alternative channels for expression.
These two decisions by the courts serve as a guide to the City of Newport Beach in
updating its zoning provisions related to tattoo establishments.
Summary of City's Current Regulations
Sections 20.70.020 and 21.70.020 of the NBMC define tattoo services as a Restricted
Personal Service use which is broadly permitted in all office zones, commercial zones
(except the CM zone) and mixed-use zones subject to MUP. This use classification is
intended for personal service establishments that may need to be dispersed from other
similar uses to minimize adverse impacts. Other personal service uses classified under
this category include day spas, healing arts and tanning salons. In order to approve the
MUP, the Zoning Administrator must find:
1. The use is consistent with the General Plan and any applicable specific plan;
2. The use is allowed within the applicable zoning district and complies with all
other applicable provisions of this Zoning Code and the Municipal Code;
3. The design, location, size and operating characteristics of the use are compatible
with the allowed uses in the vicinity;
4. 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; and
5. 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.
5-33
Ordinance No. 2021-27: A Code Amendment Related to Tattoo Establishments
(PA2020-030)
November 30, 2021
Page 4
The above criteria required for approving a tattoo establishment are subjective in nature
and raise concerns that a court would find these standards vest unbridled discretion in
granting a permit to operate and whether they are narrowly tailored to serve a significant
governmental interest and allow ample alternative channels for expression in accordance
with the Long Beach decision.
Proposed Amendment
The proposed code amendment would allow ministerial approval of tattoo establishments
in commercial zones of the City subject to separate requirements and other development
and operational standards delineated below. The proposed code amendment would serve
the objectives of creating reasonable time, place and manner restrictions as required by
the First Amendment while also ensuring tattoo establishments are compatible with the
surrounding area, do not result in an overconcentration, and maintain the quality and
character of the community.
Definition and Table Revision
The proposed code amendment defines tattoo establishments as its own use type
(Attachment A) separate and distinct from other Restricted Personal Service Use
types and modifies relevant tables demonstrating the zoning districts where tattoo
establishments are permitted.
Development Standards
The proposed code amendment incorporates development standards for the
operation of a tattoo establishment including zones where the use is allowed, site
and floor plan requirements to ensure the operation is fully contained within the
building and does not spillover to the outdoors, parking requirements, signage
requirements as well as separation requirements. With respect to the zones where
the use would be allowed, tattoo establishments would be authorized only in the
following specific zones: CG (Commercial General), OG (Office General), and OR
(Office Regional).
With respect to the separation requirements, a tattoo establishment could not
operate within 1,000 feet of another tattoo establishment, 500 feet of sensitive uses
such as schools or playgrounds, and 500 feet from residential. The proposed
zoning districts, along with the separate requirement, ensures ample locations for
tattoo establishments to locate while preventing overconcentration, ensuring
compatibility with surrounding uses, and mitigating secondary effects. Staff
analyzed the proposed locational requirements and found that in addition to the
five existing tattoo establishments currently operating in the City, there are
approximately 150-200 potentially available sites for the establishment of new
tattoo business when factoring in the locational requirements under the proposed
code amendment and the number of existing suites/offices provided at these
locations.
5-34
Ordinance No. 2021-27: A Code Amendment Related to Tattoo Establishments
(PA2020-030)
November 30, 2021
Page 5
It is important to note that the proposed 1,000 -foot separation requirement
between tattoo establishments will diminish the availability of sites as new tattoo
businesses are opened.
Operating Standards
The proposed ordinance would establish hours of operation, ensure the operation
and the area within its vicinity are properly maintained, require the operation to be
in compliance with Chapter 10.26 (Community Noise Control) noise requirements,
require security cameras and screening, as well as limiting the consumption of
alcohol or marijuana on the premises.
Finally, tattoo establishments and artists operating within the establishment are
required to comply with all other applicable license and permitting requirements.
Existing Tattoo Establishments
There are five existing tattoo establishments within the City that are legally permitted to
operate under the City's current zoning regulations. These five establishments would
become legal non -conforming uses as a result of adopting the proposed code amendment
based upon the zoning district in which they are located or the locational/separation
requirements of the proposed ordinance. As non -conforming uses, these establishments
would be able to continue operating but would be required to obtain a conditional use
permit in order to expand or intensify their use in accordance with Section 20.38.050
(Nonconforming Uses) of the NBMC. Non -conforming rights to operate would cease in
the event the tattoo establishment use is discontinued for 180 consecutive days.
General Plan Consisten
The proposed code amendment does not introduce any new Zoning Districts or General
Plan Land Use Plan Categories in which tattoo establishments would be permitted. The
General Commercial and Regional Commercial Office are the two General Plan Land
Use Categories under which tattoo establishments would continue to be allowed. These
two designations allow for a range of uses and are consistent with the proposed Zoning
Code amendment.
Local Coastal Plan
Similar to Title 20 (Planning and Zoning), Title 21 (Local Coastal Program Implementation
Plan) currently regulates tattoo establishments. Therefore, subsequent to City Council
adoption of this Zoning Code Amendment, staff will submit corresponding amendments
(Attachment B) to the LCP for review and approval of the California Coastal Commission.
Plannina Commission Recommendation
The proposed code amendment was initially presented to the Planning Commission on
May 6, 2021.
5-35
Ordinance No. 2021-27: A Code Amendment Related to Tattoo Establishments
(PA2020-030)
November 30, 2021
Page 6
After receiving a presentation from staff and discussing the item, the Planning Commission
voted (7-0) to continue the item to allow staff additional time to research and respond to the
Commission's questions such as exploring smoking limitations and hours of operations
(Attachment D). At the July 22, 2021, Planning Commission meeting, staff provided
feedback to the commission in response to questions from the previous meeting as well as
suggested modifications to the ordinance to limit the hours of operation to appointment only
and a provision that would prohibit clients, guests or staff from smoking withing 20 feet of
the tattoo establishment. At the conclusion of the public hearing and after deliberations,
the Planning Commission adopted Resolution Nos. PC2020-018 and PC2020-019 by a
vote of 5-0 (2 members absent); thereby recommending the City Council adopt the zoning
ordinance and local coastal program amendment (Attachments F & G). It should be noted
that staff incorporated one clarification to the proposed amendment to make clear
separation requirements from existing legal non -conforming properties within the Santa
Ana Heights Specific Plan are excluded from residential separation requirements. A small
number of legal non -conforming properties remain in proximity to areas in which tattoo
establishments would be permitted under the proposed ordinance; however, the overall
intent of the zoning in this area is to support business park uses. The small number of
legacy residential uses that currently remain are expected to transition to office or
commercial uses overtime.
FISCAL IMPACT:
There is no fiscal impact related to this item.
NVIRONMENTAL REVIEW:
The Code Amendment is categorically exempt from the California Environmental Quality
Act (CEQA) pursuant to Section 15061(b)(3), the general rule that CEQA applies only to
projects, which have the potential for causing a significant effect on the environment. While
this amendment would allow tattoo establishments as a permitted use within the City, it does
not authorize new development that would directly result in physical changes to the
environment. There is no evidence that amending the regulations for tattoo establishments
would result in any new effects on the environment. Additionally, pursuant to CEQA
Guidelines Section 15265(a)(1), local governments are exempt from the requirements of
CEQA in connection with the adoption of a Local Coastal Program.
NOTICING -
Pursuant to Section 13515 of the California Code of Regulations, a review draft of the
LCP amendment was made available and a Notice of Availability was distributed on
September 28, 2021.
Notice of the proposed amendments was published in the Daily Pilot as an eighth -page
advertisement, consistent with the provisions of the NBMC. The item also appears on the
agenda for this meeting, which was posted at City Hall and on the City Website. Finally,
notice was mailed to all property and business owners for properties and/or businesses
that were previously identified as having a nonconforming sign; as well as, emailed to all
persons that submitted written correspondence regarding this item.
5-36
Ordinance No. 2021-27: A Code Amendment Related to Tattoo Establishments
(PA2020-030)
November 30, 2021
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ATTACHMENTS:
Attachment A —
Zoning Ordinance No. 2021-27
Attachment B —
City Council Resolution No. 2021-127
Attachment C —
Planning Commission Staff Report July 22, 2021
Attachment D —
May 6, 2021 Planning Commission Minutes Except
Attachment E —
July 22, 2021 Planning Commission Minutes Except
Attachment F —
Planning Commission Resolution No. PC2020-018
Attachment G —
Planning Commission Resolution No. PC2020-019
Attachment H —
Strike Out Redline
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Attachment E
Coastal Commission Approval Letter
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STATE OF CALIFORNIA - NATURAL RESOURCES AGENCY
CALIFORNIA COASTAL COMMISSION
South Coast Area Office
301 East Ocean Avenue, Suite 300
Long Beach, CA 90802
(562) 590-5071
The Honorable City Council
City of Newport Beach
100 Civic Center Drive
Newport Beach CA 92660
GAVIN NEWSOM, GOVERNOR
March 30, 2022
Re: City of Newport Beach LCP Amendment Request No. LCP-5-NPB-21-0084-3 Part A & Part B
Dear Councilpersons:
You are hereby notified that the California Coastal Commission, at its March 9, 2022 meeting
approved, as submitted, City of Newport Beach LCP Amendment No. LCP-5-NPB-21-0084-3 Part
A and Part B.
LCP Amendment No. LCP-5-NPB-21-0084-3 Part A was submitted pursuant to City Council
Resolution No. 2021-97. Part A of the amendment involves corrections to numerous errors
on eleven (11) of the currently certified twenty-six (26) coastal zone setback maps in the
Implementation Plan (IP) portion of the certified LCP to resolve ambiguities to reflect the
original intent of the prior districting maps. Specifically, the amendment revises Setback Map
Nos. S -1A — West Newport, S -2A — Balboa Peninsula, S -2E — Balboa Peninsula, S -21F
Balboa Peninsula, S -2G — Balboa Peninsula, S-6 — Bay Shores, S-8 — Harbor Island, S-1 OA —
Corona del Mar, S -10B — Corona del Mar, and S -10D —Corona del Mar. The Executive
Director determined that the amendment is a minor amendment and reported it to the
Commission on March 9, 2022. The Commission did not object and the minor amendment.
Pursuant to Coastal Act Section 30514(c), the minor amendment is deemed approved and
becomes a certified part of the LCP ten working days after the date of the Commission
meeting: in this case, on March 23, 2022.
LCP Amendment No. LCP-5-NPB-21-0084-3 Part B was submitted pursuant to City Council
Resolution No. 2021-127. Part B of the amendment constitutes a major amendment to the IP
portion of the certified LCP as it involves a change to the definition of tattoo establishments
as its own use type separate and distinct from other "Restricted Personal Service Use" types
(IP Chapter 21.70 — Definitions, Section 21.70.020) and restricts where tattoo establishments
would be allowed (IP Section 21.20.020(C), Table 21.30-1) The amendment was approved
as submitted with no suggested modifications. Thus, pursuant to the Commission's March 9,
2022 action, certification of the City of Newport Beach LCP Amendment No. LCP-5-NPB-21-
0084-3, Part B is complete.
On behalf of the Coastal Commission, I would like to congratulate the City on the completion
of this LCP amendment. We look forward to working with you and your staff in the future.
Sincerely,
Liliana Roman
Coastal Program Analyst
CC" Jaime Murillo, Planning Program Manager
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