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HomeMy WebLinkAboutZA2022-050 - APPROVING LIMITED TERM PERMIT NO. XP2022-002 AND COASTAL DEVELOPMENT PERMIT NO. CD2022-016 TO ALLOW AN OUTDOOR DINING AREA LOCATED AT 801 EAST BALBOA BOULEVARD (PA2022-049)RESOLUTION NO. ZA2022-050 A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH, CALIFORNIA APPROVING LIMITED TERM PERMIT NO. XP2022-002 AND COASTAL DEVELOPMENT PERMIT NO. CD2022-016 TO ALLOW AN OUTDOOR DINING AREA LOCATED AT 801 EAST BALBOA BOULEVARD (PA2022-049) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Cruisers Pizza Bar Grill, with respect to a property located at 801 East Balboa Boulevard and legally described as Lots 1 through 6 of Block 12 of the Balboa Tract requesting approval of a limited term permit and coastal development permit. 2. The applicant proposes a 672-square-foot temporray outdoor dining area for Cruisers Pizza Bar Grill for up to a six-month term (July 28, 2022 through January 28, 2023). The expanded patio is a reduction from the 2,886-square-foot temporary outdoor dining area previously authorized through Emergency Coastal Development Permit No. CD2020- 029 and Emergency Temporary Use Permit No. UP2020-011 (PA2020-084). 3. The subject property is designated Mixed-Use Vertical (MU-V) by the General Plan Land Use Element and is located within the Mixed-Use Vertical (MU-V) Zoning District. 4. The subject property is located within the coastal zone. The Coastal Land Use Plan category is Mixed-Use Vertical (MU-V) and it is located within the Mixed-Use Vertical (MU- V) Coastal Zone District. 5. A public hearing was held on July 28, 2022, online via Zoom. A notice of time, place and purpose of the hearing was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Zoning Administrator at this hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This project is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15301 and 15303 under Class 1 (Existing Facilities) and Class 3 (New Construction or Conversion of Small Structures), respectively, of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. 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 Class 3 exemption includes a store, motel, office, restaurant, or similar structure not Zoning Administrator Resolution No. ZA2022-050 Page 2 of 12 01-25-19 involving the use of significant amounts of hazardous substances, not exceeding 2,500 square feet in floor area or 10,000 square feet in floor area in urbanized areas zoned for such use. The proposed scope of work is a maximum 672-square-foot expanded outdoor dining patio at an existing restaurant for a six (6)-month limited term and qualifies under the parameters of the Class 1 and Class 3 exemptions. 3. The exceptions to this categorical exemption under Section 15300.2 are not applicable. The project location does not impact an environmental resource of hazardous or critical concern, does not result in cumulative impacts, does not have a significant effect on the environment due to unusual circumstances, does not damage scenic resources within a state scenic highway, is not a hazardous waste site, and is not identified as a historical resource SECTION 3. REQUIRED FINDINGS. Limited Term Permit In accordance with Section 20.52.040.G (Limited Term Permits) of the Newport Beach Municipal Code, the following findings and facts in support of such findings are set forth: Finding: A. The operation of the limited duration use at the location proposed and within the time period specified would not be detrimental to the harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the requested limited duration use; Facts in Support of Finding: 1. The limited term permit will allow an extended outdoor dining patio for six (6)-month term while the City reconsiders its parking requirements related to food service uses. The existing expanded outdoor dining area is authorized through Emergency Temporary Use Permit No. UP2020-011 and Emergency Coastal Development Permit No. CD2020-029 (PA2020-084) and includes 672 square feet of net public area. 2. The expanded dining area has not posed a hazard to the general welfare of persons residing in the area since it was placed during the COVID-19 pandemic in 2020 through an Emergency Temporary Use Permit. The operation of the expanded dining area is limited to six (6) months beginning July 28, 2022, through January 28, 2022, and has been reviewed and conditioned to preclude any detriment to the general welfare of the area. Additionally, the outdoor dining area has been reduced to 672-square-feet from its original 2,886-square foot dining area, approved through Emergency Temporary Use Permit UP2020-011 and Emergency Coastal Development Permit CD2020-029. 3. The proposed operation is conditioned to be accessible to all persons, including those with disabilities, in accordance with the Americans with Disabilities Act (ADA). Zoning Administrator Resolution No. ZA2022-050 Page 3 of 12 01-25-19 4. 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. 5. The permitted use must be operated in compliance with applicable State Department of Alcoholic Beverage Control (ABC) requirements. 6. The overall plan includes appropriate delineation of outdoor use spaces with physical barriers or markers. Finding: B. The subject lot is adequate in size and shape to accommodate the limited duration use without material detriment to the use and enjoyment of other properties located adjacent to and in the vicinity of the lot; Facts in Support of Finding: 1. The subject lot is approximately 0.35 acres in size and is a flat property adjacent to East Balboa Boulevard and Main Street. An existing food service use began operating at 801 East Balboa Boulevard prior to 1967. Based upon the site plan, there is adequate area to accommodate the expanded dining area without impacting traffic and pedestrian circulation. 2. An existing food service use with outdoor dining is located on site. The lot is bounded by commercial and mixed-use buildings to the west, and residentially zoned properties to the east. To the north are mixed-use and commercial buildings. To the south are residential units. The expanded outdoor dining use will not impede use and enjoyment of the properties in the area. 3. The existing restaurant site has a deficit of thirty-eight (38) parking spaces. The expanded dining area will reduce the private parking provided by four (4) parking spaces. The modified design will clear the one-way drive-aisle circulation through the site and provide a better flow of traffic for patrons seeking parking for the restaurant, as was the case before the implementation of the establishment’s emergency temporary use permit. No ongoing traffic or site circulation issues are anticipated. Finding: C. The subject lot is adequately served by streets or highways having sufficient width and improvements to accommodate the kind and quantity of traffic that the limited duration use would or could reasonably be expected to generate; Fact in Support of Finding: Zoning Administrator Resolution No. ZA2022-050 Page 4 of 12 01-25-19 1. The subject lot is accessed from East Balboa Boulevard to the north and Main Street to the west. Private parking is provided on-site. The food service use is located in a commercial, mixed-use and residential area and currently to operates from 11:00 a.m. to 12:00 a.m., Monday through Thursday; 11:00 a.m. to 1:00 a.m., Friday; 10:00 a.m. to 1:00 a.m., Saturday; and 10:00 a.m. to 12:00 a.m., Sunday. The parking lot on-site has historically accommodated Cruisers and no traffic issues are anticipated with the continued use of the expanded dining area. Finding: D. Adequate temporary parking to accommodate vehicular traffic to be generated by the limited duration use would be available either on-site or at alternate locations acceptable to the Zoning Administrator; and Facts in Support of Finding: 1. The existing business with outdoor dining has operated at the subject property since 2014. The existing parking on-site has historically accommodated the food service use and is expected to accommodate the temporary use. 2. The subject property’s restaurant use predates the issuance of use permits for eating and drinking establishments. Therefore, a parking rate has not been formally established. However, a parking rate of 1 space per 40 square feet of net public area is common for businesses with similar operating characteristics to Cruisers. 3. The establishment maintains a total of twenty-one (21) existing parking spaces located on- site. The outdoor dining area will create additional parking demand and occupy four (4) spaces. Seventy-six (76) spaces are required per the parking rate established for similar businesses, including the demand created by the outdoor dining area, resulting in a deficit of fifty-nine (59) parking spaces. 4. The proposed outdoor dining area will use four (4) spaces, reducing the parking supply to seventeen (17) spaces based on the provided site plan. While the anticipated parking demand for the proposed outdoor dining area is not accommodated for on-site, there are several public parking lots and street parking near the subject property. Furthermore, Cruisers is proposing a bike parking area, further lessening the impact of the increased parking demand for the business. Finding: E. The limited duration use is consistent with all applicable provisions of the General Plan, any applicable specific plan, the Municipal Code, and other City regulations. Facts in Support of Finding: 1. The General Plan land use designation for this site is MU-V (Mixed-Use Vertical). The MU- V designation is intended for the development of properties for mixed-use structures that Zoning Administrator Resolution No. ZA2022-050 Page 5 of 12 01-25-19 vertically integrate housing with retail uses including retail, office, restaurant, and similar nonresidential uses. Food service uses are consistent with nonresidential uses permitted in this zoning district, on the first floor. The expanded outdoor dining use is accessory to the existing food service use with outdoor dining, will be utilized for a limited duration on- site, and will not impede use of the site consistent with the MU-V designation. 2. The site is located in the MU-V (Mixed-Use Vertical) Zoning District. The MU-V designation is intended to provide for areas appropriate for the development of mixed- use structures that vertically integrate residential dwelling units above the ground floor with retail uses including office, restaurant, retail, and similar nonresidential uses located on the ground floor or above. The expanded outdoor dining use is accessory to the existing food service use with outdoor dining, will be utilized for a limited duration on-site, and will not impede use of the site consistent with the MU-V designation. The MU-V zoning district allows temporary uses as specified within the Zoning Code and the proposed limited duration use is consistent with this designation. 3. The Limited Term Permit for expanded outdoor dining would complement and be consistent with the other commercial uses permitted within the MU-V Zoning District. It provides amenities that support visitors to the area and provides a social gathering place for those who live and work in the neighborhood, consistent with General Plan Land Use Element Goal LU 2, below. Additional benefits from the proposed request include providing opportunities for the continuation of local businesses that generate sales tax and provide opportunities for employment, which is consistent with General Plan Land Use Element Policy LU 2.4 (Economic Development), also copied below: Goal LU 2 A living, active, and diverse environment that complements all lifestyles and enhances neighborhoods, without compromising the valued resources that make Newport Beach unique. It contains a diversity of uses that support the needs of residents, sustain and enhance the economy, provide job opportunities, serve visitors that enjoy the City’s diverse recreational amenities, and protect its important environmental setting, resources, and quality of life. Policy LU 2.4 Economic Development Accommodate uses that maintain or enhance Newport Beach’s fiscal health and account for market demands, while maintaining and improving the quality of life for current and future residents. (Imp 1.1, 24.1) 4. Council Policy D-9 recognizes the need to balance economic development objectives with protection of the environment and the health and safety of the community. The policy recognizes the need to provide effective and efficient structures for implementing economic programs, utilizing staffing to provide healthy, thriving businesses, and maintain a healthy economy while preserving the unique commercial villages in Newport Beach. The proposed limited term permit would support a local business and its economic prosperity while maintaining the unique character of the Balboa Peninsula community. 5. The site is not located within a specific plan area. Zoning Administrator Resolution No. ZA2022-050 Page 6 of 12 01-25-19 Coastal Development Permit In accordance with Section 21.52.015 (Coastal Development Permits, Findings and Decision) of the NBMC, the following findings and facts in support of such findings are set forth: Finding: F. Conforms to all applicable sections of the certified Local Coastal Program. Facts in Support of Finding: 1. The project site is not located adjacent to a coastal view road, public access way, or Coastal Viewpoint as identified in the Coastal Land Use Plan. The nearest coastal viewpoints are the Balboa Pier and Peninsula Park, immediately to the south of the site and the property is not visible from the either viewpoint. The expanded outdoor dining area complies with all applicable Local Coastal Program (LCP) development standards and maintains an area consistent with the existing pattern of development in the Balboa Peninsula. The outdoor dining area has been reduced by over 2,000 square feet from the scope approved by Emergency Temporary Use Permit No. UP2020-011 and Emergency Coastal Development Permit No. CD2020-029 (PA2020-084), and placed entirely inside four (4) parking stalls, instead of encroaching into the property’s drive aisle. This improved, narrow design will be less visible from East Balboa Boulevard and Main Street. 2. The Property is located in the coastal zone and the proposed improvements require a coastal development permit in accordance with Newport Beach Municipal Code (NBMC) Section 21.52.035(C)(2) (Projects Exempt from Coastal Development Permit Requirements). The improvements constitute an increase of ten (10) percent or more of the internal floor area of an existing structure or a lesser improvement that has previously been undertaken pursuant to California Public Resources Code Section 30610(a). The expanded outdoor dining area and barrier within the private parking lot are minor detached structures. The location of these improvements does not pose a conflict to coastal resources, parking, coastal access, or other adverse environmental effects. 3. The subject property’s restaurant use predates the issuance of use permits for eating and drinking establishments. Therefore, a parking rate has not been formally established. However, a parking rate of one (1) space per 40 square feet of net public area is common for businesses with similar operating characteristics and hours of operation to Cruisers. The establishment maintains a total of twenty-one (21) existing parking spaces located on-site. Four (4) of these spaces will be occupied by the outdoor dining area. Seventy-six (76) spaces are required per the parking rate established for similar businesses, including the demand created by the outdoor dining area, resulting in a deficit of fifty-nine (59) parking spaces. Zoning Administrator Resolution No. ZA2022-050 Page 7 of 12 01-25-19 4. The dining area barrier is installed within the private parking lot. The barrier delineates the area dedicated for outdoor dining use and alcohol service from parking area. There are no existing City utilities within the expanded dining area. Substantial barriers in the form of water-filled barriers will be provided adjacent to drive aisles and parking areas to ensure the safety of pedestrians from vehicle areas. 5. Development authorized by this permit will not block public access to the coast. Coastal access is increased by allowing commercial establishments to re-open, allowing the public to visit coastal areas and providing an added amenity for visitors. 6. Development authorized is not located in an area in which the California Coastal Commission retains direct permit review authority. Finding: G. Conforms with the public access and public recreation policies of Chapter 3 of the Coastal Act if the project is located between the nearest public road and the sea or shoreline of any body of water located within the coastal zone. Fact in Support of Finding: 1. The project site is located between the nearest public road and the sea or shoreline. Implementation Plan Section 21.30A.040 (Determination of Public Access/Recreation Impacts) requires that the provision of public access bear a reasonable relationship between the requirement and the project’s impact and be proportional to the impact. In this case vertical access is provided at Main Street, and lateral access is provided at East Ocean Front. Furthermore, the project is designed and sited (appropriate height, setbacks, etc.) so as not to block or impede existing public access opportunities. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Zoning Administrator of the City of Newport Beach hereby finds this project is categorically exempt from the California Environmental Quality Act pursuant to Section 15301 under Class 1 (Existing Facilities) and Section 15303 under Class 3 (New Construction or Conversion of Small Structures) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. 2. The Zoning Administrator of the City of Newport Beach hereby approves Limited Term Permit No. XP2022-002 and Coastal Development Permit No. CD2022-016, subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. 3. This action shall become final and effective 14 days following the date this Resolution was adopted unless within such time an appeal or call for review is filed with the Community Development Director in accordance with the provisions of Title 20 Planning and Title 21 Zoning Administrator Resolution No. ZA2022-050 Page 8 of 12 01-25-19 Local Coastal Implementation Plan, of the Newport Beach Municipal Code. Final action taken by the City may be appealed to the Coastal Commission in compliance with Section 21.64.035 of the City’s certified LCP and Title 14 California Code of Regulations, Sections 13111 through 13120, and Section 30603 of the Coastal Act. PASSED, APPROVED, AND ADOPTED THIS 28TH DAY OF JULY, 2022. Zoning Administrator Resolution No. ZA2022-050 Page 9 of 12 01-25-19 EXHIBIT “A” CONDITIONS OF APPROVAL (Project-specific conditions are in italics) Planning Division 1. The development shall be in substantial conformance with the approved site plan stamped and dated with the date of this approval (except as modified by applicable conditions of approval). 2. The approval of this Limited Term Permit and Coastal Development Permit shall be effective from July 28, 2022, to January 28, 2023, unless an extension (up to one year) is granted by the Zoning Administrator in compliance with Municipal Code Sections 20.52.040.J (Extension of Limited Term Permit) and 21.54.060 (Time Limits and Extensions). The applicant shall be required to cease all permitted operations and remove any temporary improvements made to the outdoor spaces as part of this approval at the end of the effective period. 3. The expanded dining area shall not exceed 672 square feet in area. The design and site circulation shall occupy no more than four (4) existing parking spaces on-site 4. The existing allowed hours of operation of the establishment shall not be extended. The hours of operation of the expanded area as part of this approval shall not extend beyond 10:00 p.m., daily. 5. All outdoor televisions shall be muted and no outdoor amplified sound systems shall be utilized. 6. The applicant shall install and maintain a physical barrier between any area in accordance with the requirements of the State Department of Alcoholic Beverage Control. 7. The Applicant shall obtain and maintain authorization from the State Department of Alcoholic Beverage Control (ABC) for all areas where the sale, service or consumption of alcohol is under the control of the applicant. The establishment shall abide by all applicable regulations of the State Department of Alcoholic Beverage Control. 8. The sale of alcohol “to go” to patrons that dine within the expanded outdoor patios shall be prohibited. 9. The establishment shall abide by all applicable Orange County Health Care Agency requirements. 10. The permittee shall provide adequate trash receptacles within the permitted patio and 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. Zoning Administrator Resolution No. ZA2022-050 Page 10 of 12 01-25-19 11. The Community Development Director or designee may inspect the modified area at any time during normal business hours. 12. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 13. The applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this approval. 14. This Limited Term Permit and Coastal Development Permit be modified or revoked by the Zoning Administrator if determined that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 15. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to this Limited Term Permit and Coastal Development Permit. 16. To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney’s fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City’s approval of this Limited Term Permit No. XP2022- 002 and Coastal Development Permit No. CD2022-016 (PA2022-049) for Cruisers Pizza Bar Grill. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant, City, and/or the parties initiating or bringing such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. Building Division 17. Any areas used for temporary commercial or institutional use shall be accessible to disabled persons. a. A minimum 4-foot-wide accessible path to all functional area shall be provided. b. Access to restrooms shall be provided at all times. c. Accessible parking stalls shall not be used for seating areas when onsite parking is provided. d. At least one (1) accessible seating area shall be provided. Zoning Administrator Resolution No. ZA2022-050 Page 11 of 12 01-25-19 e. Detectable warnings are required when pedestrian paths cross or are adjacent to a vehicular way where no physical barrier are provided to separate the two. 18. All tops of dining and work surfaces shall be 28 inches to 34 inches above the finish floor. 19. All exiting paths shall be a minimum 36 inches free and clear. All public walks and sidewalks shall be a minimum 48 inches free and clear. 20. Detectable warning strips shall be provided where the pedestrian way cross into the vehicular way. Fire Department 21. Fire lane(s) shall be identified on the plan. 22. Parking, displays, seating or other obstacles that interfere with emergency vehicles and personnel shall not be permitted in fire lanes. 23. Vehicles are permitted to stop in fire lanes awaiting service or delivery provided that the driver remains inside the vehicle and the vehicle is ready to move immediately upon orders from emergency personnel. 24. All Fire Department devices (fire hydrants, fire department connections, water valves, etc.) shall have a three-foot clearance in all directions. 25. Fire Department devices shall not be covered, blocked or otherwise hidden from plain view. 26. All building exits shall remain free and clear of any obstacles that would impede exiting from a building or suite and accessing the nearest public right-of-way. 27. Heat lamps or other heating elements shall comply with the following requirements in accordance with code section 3107.12 of the California Fire Code: a. Propane and other fuel-based heating elements (including but not limited to flammable/combustible gas, liquid, or solid materials) shall not be used within tents or canopies. b. Electric heaters must be UL listed for use within tents and/or canopies. c. Propane and other fuel-based heating devices with blowers may be permitted, with the heating element located a minimum of 10 feet from the edge of the tent or canopy. d. All heating equipment installations shall be approved by the fire code official. 28. Covered outdoor dining areas (separate or consolidated) shall comply with the following standards for tents larger than 400 square feet (two [2] or more walls) and/or canopies larger than 700 square feet (no walls or one [1] wall): • Post maximum occupant load. Zoning Administrator Resolution No. ZA2022-050 Page 12 of 12 01-25-19 • Do not exceed posted occupant load inside the tent or canopy. • Visible and Mounted Fire Extinguishers with current service tags. • No Smoking Signs shall be installed. • Illuminated Exit Signs shall be installed. • Emergency Lighting shall be provided. • Exit doors are not to be blocked and are to remain accessible as exits while the tent is occupied. • All interior decorative fabrics or materials shall be flame resistant. Provide Certificates of Flame Resistance. • If Propane is used, a permit is required: Cooking and heating equipment shall not be located within 10 feet of exits or combustible materials. • LPG containers shall be located outside and be adequately protected and secured, and a permit will be required. Open flame or other devices emitting flame, such as candles, are not permitted inside or within 20 feet of the tent, canopy, or temporary membrane structure. • Tents and canopies shall have the State Fire Marshal tag indicating fire resistance. • Tents and canopies shall be designed and installed to withstand the elements of the weather and prevent collapsing through weights and ground anchorage. Public Works Department 29. The Applicant shall install and maintain a substantial physical barrier (water-filled traffic barrier or K-rail between any area used and adjacent to any street, driveway, or parking area). The barrels shall not project into the adjacent drive aisle. 30. There shall be a minimum of 5 feet of space around all overhead facilities such as power poles and 15 feet of spaces around all underground facilities, such as vault lids, vent pipes, pad mounted transformers, etc. 31. Seating or structures below overhead conductors and/or under the “drip line” shall be prohibited. 32. Public eating/dining at tables shall not be situated on top of energized vault lids, energized underground structures, or next to vent pipes, etc. 33. Expanded outdoor dining areas shall adhere to the Southern California Edison clearance decal requirements. 34. All dead-end drive aisles shall be accommodated a dedicated turn-around area and minimum 5-foot hammerhead area. 35. Directional signage shall not impact the required dimensions of the drive aisle and parking stalls.