HomeMy WebLinkAboutPC2023-001 - APPROVING A COASTAL DEVELOPMENT PERMIT AND CONDITIONAL USE PERMIT TO DEMOLISH AN EXISTING NONRESIDENTIAL STRUCTURE AND TO CONSTRUCT A NEW FOOD SERVICE, EATING AND DRINKING ESTABLISHMENT WITH A TYPE 41 (BEER AND WINE – EATING PLACE) ALCOHOLICRESOLUTION NO. PC2023-001 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, APPROVING A COASTAL DEVELOPMENT PERMIT AND CONDITIONAL USE PERMIT TO DEMOLISH AN EXISTING NONRESIDENTIAL STRUCTURE AND TO CONSTRUCT A NEW FOOD SERVICE, EATING AND DRINKING ESTABLISHMENT WITH A TYPE 41 (BEER AND
WINE – EATING PLACE) ALCOHOLIC BEVERAGE CONTROL LICENSE WITH NO LATE HOURS, AND WAIVE THE REQUIRED OFF-STREET PARKING FOR THE PROPERTY LOCATED AT 224 MARINE AVENUE (PA2021-276)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS: SECTION 1. STATEMENT OF FACTS.
1. An application was filed by 224 Marine Ave, LLC (“Applicant”), with respect to property
located at 224 Marine Avenue, and legally described as Lot 13 of Block 11 in Section 4 of Balboa Island, in the City of Newport Beach, County of Orange, State of California, as per map recorded in Book 7, Page 37 of Maps, in the office of the County Recorder of said Orange County (“Property”), requesting approval of a coastal development permit and
conditional use permit.
2. The Applicant proposes to demolish an existing nonresidential structure and construct a new 1,102-square-foot structure to be used as a food service, eating and drinking establishment (hereafter referred to as a “restaurant” or “Arc Balboa Island”). The 1,102
square feet would be programmed as the back-of-house area with restrooms, a kitchen,
and required storage areas. The restaurant would operate with 999 square feet of outdoor dining area and there would be no interior dining area provided. Alcohol sales and service are proposed with a Type 41 (On-Sale Beer and Wine – Eating Place) license issued by the State Department of Alcoholic Beverage Control (“ABC”). The proposed
hours of operation are from 7 a.m. to 10 p.m., daily. Given the small 2,250-square-foot lot
and its limited access, the Applicant is also requesting a waiver of all required off-street parking (“Project”). 3. The Property is located within the Coastal Zone. The Coastal Land Use Plan category is
Mixed-Use Water Related (MU-W) and it is located within the Mixed-Use Water (MU-W2)
Coastal Zoning District. The Project is “development” as defined in Section 21.70.020 (Definitions of Specialized Terms and Phrases) of the Newport Beach Municipal Code (“NBMC”). Therefore, a coastal development permit is also required for the Project in accordance with Section 21.52.015 (Coastal Development Permits) of the NBMC.
4. The Property is categorized Mixed-Use Water 2 (MU-W2) by the General Plan Land Use Element and is located within the Mixed-Use Water (MU-W2) Zoning District.
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5. A public hearing was held on January 5, 2023, in the City Council Chambers at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the public
hearing was given in accordance with 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.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
1. The Project is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15303 under Class 3 (New Construction or Conversion of Small Structures) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3,
because it has no potential to have a significant effect on the environment.
2. The Class 3 (New Construction or Conversion of Small Structures) exemption includes the demolition and construction of limited numbers of new, small facilities or structures, including a restaurant or similar structure not involving the use of significant amounts of
hazardous substances, and not exceeding 2,500 square feet in floor area. The Project
involves demolition of a small existing nonresidential structure and the construction of a new 1,102-square-foot nonresidential structure with a 999-square-foot outdoor dining area to be used as a restaurant. The cumulative square footage of the use is 2,101 square feet, which is less than allowed by the Class 3 exemption.
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.
Alcohol Sales
In accordance with Section 20.48.030(C)(3) (Alcohol Sales-Required Findings) of the NBMC, the following findings and facts in support of such findings are set forth:
Finding:
A. The use is consistent with the purpose and intent of NBMC Section 20.48.030 (Alcohol
Sales).
Facts in Support of Finding:
i. The crime rate in the reporting district and adjacent reporting districts as compared to
other areas in the City.
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1. The Property is in Reporting District 42 (“RD 42”). The crime rate in RD 42 is less than the City average and less than adjacent RDs 41 and 44, but higher than
adjacent RD 43. It is generally considered a lower crime area as compared to other
reporting districts with commercial uses. RD 42’s Crime Count is 50, which is 50 percent below the Citywide crime count average of 101. As such, there is no undue concentration for this area. In comparison, the neighboring RD 41 is 26 percent above the Citywide average, RD 44 is 111 percent above the Citywide average, and
RD 43 is 64 percent below the Citywide average.
2. The Newport Beach Police Department (“NBPD”) has reviewed the Project. Based on the location, operational characteristics, and closing hour of 11 p.m., they have no objection to establishing a new Type 41 (On-Sale Beer and Wine – Eating Place)
alcoholic beverage license, subject to the recommended conditions of approval,
which are all incorporated into Exhibit “A.” ii. The numbers of alcohol-related calls for service, crimes, or arrests in the reporting district and in adjacent reporting districts.
1. The calls for service and number of arrests in RD 42 are less than neighboring RDs 41 and 44, but higher than RD 43. RD 43 is bound by East Coast Highway to the north, Avocado Avenue to the east, the harbor to the south, and Jamboree Road to the west. It is almost completely residential.
2. The highest volume crime in RD 42 is simple assault and the highest volume arrest in the area is driving under the influence or “DUI.” Driving under the influence and public intoxication make up 26 percent of all arrests in RD 42. This is just below the Citywide average of approximately 27 percent. However, the area is considered one
of the more attractive tourist areas in the City, which results in a higher number of
alcohol-related calls for service, crimes and arrests. iii. The proximity of the establishment to residential zoning districts, day care centers, hospitals, park and recreation facilities, places of worship, schools, other similar uses, and
any uses that attract minors.
1. The nearest residential zoning district to the Property is the Residential Balboa Island (R-B) Zoning District, which begins immediately east across the 10-foot-wide alley. Although the R-BI District is proximate to the Property, the Project orients toward the
heavily traveled Marine Avenue. Marine Avenue is flanked on both fronts by
properties that are zoned as MU-W2 (i.e., “nonresidential”) that are developed with commercial uses and some residential units on the upper levels. Since there is no parking located onsite to serve the Property, it is not expected that patrons will access the alley from the restaurant. Furthermore, the 11 p.m. closing hour will help
to ensure patrons are not lingering in the area into the later hours of the night.
2. The nearest place of worship is Saint John Vianney Chapel located at 314 Marine Avenue, approximately 280 feet due north of the Property. The Property and Saint
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John Vianney Chapel are separated by Balboa Avenue, a 40-foot right-of-way, and eight intervening developed properties.
3. The Project is not in proximity to a daycare center, park, recreational facility, school, or similar uses that attract minors. The proposed alcohol sales and service are not expected to be detrimental to the community because of the proximity to any sensitive land uses, especially with all recommended NBPD conditions of approval
incorporated in Exhibit “A.”
iv. The proximity to other establishments selling alcoholic beverages for either off-site or on-
site consumption.
1. Eleven (11) other establishments along Marine Avenue currently have active on-sale
ABC Licenses, most of which are bona fide eating and drinking establishments and are not defined as bars, lounges, or nightclubs by the NBMC. The closest location is the New Shanghai Pine Garden restaurant, which is approximately 75 feet due north of the Property across Balboa Avenue.
2. Two (2) locations along Marine Avenue currently have active off-sale ABC Licenses. The closest location is the Americannery at 304 Marine Avenue which is approximately 130 feet due north of the Property and the Irvine Ranch Market at 200 Marine Avenue, which is approximately 300 feet due south of the Property. Both
establishments are smaller markets that offer alcohol sales for off-site consumption.
3. The Project’s proximity to other establishments selling alcohol does not raise concern due to the characteristics of the use, which is limited to 999 square feet of net public area. The proposed hours of operation are from 7 a.m. to 10 p.m., daily.
Conditions of approval will further prevent the establishment from operating as a bar
or lounge. v. Whether or not the proposed amendment will resolve any current objectionable conditions.
1. No objectionable conditions are presently occurring at the Property. The Property has historically been used for retail sales uses. 2. The Project has been reviewed and conditioned to ensure that the purpose and intent
of Section 20.48.030 (Alcohol Sales) of the NBMC is maintained and that a healthy
environment for residents and businesses is preserved. The service of alcohol is intended for the convenience of customers dining at the establishment. Operational conditions of approval recommended relative to the sale of alcoholic beverages will ensure compatibility with the surrounding uses and minimize any alcohol related
impacts.
3. As conditioned, the owners, managers, and employees selling alcohol are required to undergo and successfully complete a certified training program in responsible methods and skills for selling alcohol.
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Conditional Use Permit
In accordance with Section 20.52.020(F) (Conditional Use Permits and Minor Use Permits –
Findings and Decision) of the NBMC, the following findings and facts in support of such findings are set forth: Finding:
B. The use is consistent with the General Plan and any applicable Specific Plan. Facts in Support of Finding:
1. The General Plan Land Use Element categorizes this site as Mixed-Use Water (MU-
W2), which applies to waterfront locations that are intended for marine-related uses that are intermixed with buildings that provide residential on the upper floors. Implementation of the Project would replace an older nonresidential structure with a new nonresidential structure that would provide a new dining opportunity for residents of and visitors to
Balboa Island. While the Project does not include residential and is not explicitly
discussed in the intended uses for the Mixed-Use Water (MU-W2), standalone nonresidential uses are permitted with a floor-area-to-land-ratio (“FAR”) of 0.5.
2. The Project is consistent with the following General Plan Land Use policies, applicable to the Project:
a. Land Use Element Policy LU 1.1 (Unique Environment). Maintain and
enhance the beneficial and unique character of the different neighborhoods,
business districts, and harbor that together identify Newport Beach. Locate
and design development to reflect Newport Beach’s topography, architectural diversity, and view sheds.
Balboa Island is predominantly residential with exception of Marine Avenue and other outlying properties near the Balboa Island Ferry. Marine Avenue serves as a resident- and visitor-serving business district. Marine Avenue is generally developed with an eclectic mix of structures that provide an
appropriate scale for pedestrians. Its slower speed encourages pedestrian
activity and creates a uniquely defined destination village in Newport Beach. The Project would remove and replace an older nonresidential structure that is nearing the end of its economic life. The new structure is described by the Applicant as resembling a classic Balboa Island cottage. It will enhance the
pedestrian experience with outdoor dining areas and landscaping at the front
Property line.
b. Land Use Element Policy LU 2.6 (Visitor Serving Uses). Provide uses that serve visitors to Newport Beach’s ocean, harbor, open spaces, and other
recreational assets, while integrating them to protect neighborhoods and
residents.
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Implementation of the Project would provide a new restaurant option for those living on or visiting Balboa Island. Its smaller footprint and orientation toward
Marine Avenue will help to create harmony between Arc Balboa Island, the
adjacent mixed-use developments with residential units, and the residential properties surrounding Marine Avenue. c. Land Use Element Policy LU 3.1 (Neighborhoods, Districts, Corridors,
and Open Spaces). Maintain Newport Beach’s pattern of residential
neighborhoods, business and employment districts, commercial centers,
corridors, and harbor and ocean districts. The Project replaces an existing nonresidential use within a developed and
established business district along Marine Avenue on Balboa Island. The
Project will strengthen the visitor-serving nature of Marine Avenue consistent with the pattern of Balboa Island development and use.
d. Land Use Element Policy LU 5.2.2 (Buffering Residential Areas). Require
that commercial uses adjoining residential neighborhoods be designed to be
compatible and minimize impacts through such techniques as: Incorporation
of landscape, decorative walls, enclosed trash containers, downward focused
lighting fixtures, and/or comparable buffering elements; Attractive architectural treatment of elevations facing the residential neighborhood;
Location of automobile and truck access to prevent impacts on neighborhood
traffic and privacy.
The Project is designed to encourage most activity at the front of the Property, away from the adjacent residential neighborhoods. The rear of the Project will
be attractively designed with necessary service components that are
integrated visually into the building, including a new screened and covered trash enclosure, washout area, and a mechanical equipment room.
e. Land Use Element Policy LU 5.3.5 (Pedestrian-Oriented Architecture and
Streetscapes). Require that buildings located in pedestrian-oriented
commercial and mixed-use districts (other than the Newport Center and
Airport Area, which are guided by Goals 6.14 and 6.15, respectively, specific
to those areas) be designed to define the public realm, activate sidewalks and pedestrian paths, and provide “eyes on the street” in accordance with the
following principles: Location of buildings along the street frontage sidewalk,
to visually form a continuous or semi-continuous wall with buildings on
adjacent parcels Inclusion of retail uses characterized by a high level of
customer activity on the ground floor; to insure successful retail-type operations, provide for transparency, elevation of the first floor at or
transitioning to the sidewalk, floor-to-floor height, depth, deliveries, and trash
storage and collection; Articulation and modulation of street-facing elevations
to promote interest and character; Inclusion of outdoor seating or other
amenities that extend interior uses to the sidewalk, where feasible; and
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minimization of driveways that interrupt the continuity of street facing building elevations, prioritizing their location to side streets and alleys where feasible.
The Project places outdoor dining and landscaped garden areas closest to the Marine Avenue frontage with a Balboa Island cottage-style building behind the outdoor dining areas. This design is expected to encourage a high level of customer activity on the ground floor at the street level. While there will be
delineating walls along the Marine Avenue property line, the two-story mass
will be set back to create additional articulation and visual interest.
f. Land Use Element Policy LU 5.6.1 (Compatible Development). Require that buildings and properties be designed to ensure compatibility within and
as interfaces between neighborhoods, districts, and corridors.
The Project replaces an existing nonresidential use within a developed and established business district along Marine Avenue on Balboa Island. There will be no parking provided and access to the rear of the Property will be
limited to deliveries and waste and recycling pickup. Most of the activity
resulting from Arc Balboa Island will be located at the front of the property nearest Marine Avenue and away from the surrounding residential neighborhoods.
g. Land Use Element Policy LU 5.6.2 (Form and Environment). Require that
new and renovated buildings be designed to avoid the use of styles, colors,
and materials that unusually impact the design character and quality of their
location such as abrupt changes in scale, building form, architectural style, and the use of surface materials that raise local temperatures, result in glare
and excessive illumination of adjoining properties and open spaces, or
adversely modify wind patterns.
The Applicant describes the project as being designed consistent with a “classic Balboa Island cottage.” This style of architecture should fit well within
the context of the area while respecting the unique place that is Balboa Island.
3. The Property is not a part of a specific plan area.
Finding:
C. The use is allowed within the applicable zoning district and complies with all other applicable
provisions in the Zoning Code and Municipal Code. Facts in Support of Finding:
1. The Property is in the Mixed-Use Water (MU-W2) Zoning District, which applies to
waterfront locations that are intended for marine-related uses that are intermixed with general commercial, visitor-serving commercial, and residential dwelling units on the upper floors. Restaurants are allowed uses, subject to the approval of a use permit
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consistent with Table 2-9 of Section 20.22.020 (Mixed-Use Zoning Districts Land Uses and Permit Requirements) of the NBMC. As the Project does not propose late hours,
which is defined as beyond 11 p.m., a minor use permit should be required. However,
given the smaller lot width and depth, resulting smaller lot size, and limited access from a 10-foot alley, the Applicant is requesting to waive all required off-street parking. Pursuant to Section 20.40.0110 (Adjustments to Off-Street Parking Requirements), required off-street parking may be reduced with the approval of a conditional use permit.
2. Pursuant to Sections 20.50.040 (Application Preparation and Filing) and 21.40.040 (Off-
Street Parking Spaces Required) of the NBMC, parking required for restaurant uses may range from a rate of one space per 30 square feet to one space per 50 square feet of interior NPA based on physical and operational characteristics of the proposed restaurant. A parking rate of one space per 40 square feet of NPA is appropriate to apply
to the restaurant based on the following location and operational characteristics of the
proposed use: 1) there is no presence of pool tables, televisions, or other attractions; 2) the restaurant closes by 10 p.m., daily; and 3) walk-up traffic is expected since it is located on the densely populated Balboa Island, close to the harbor.
Finding:
D. The design, location, size, and operating characteristics of the use are compatible with the
allowed uses in the vicinity.
Facts in Support of Finding:
1. Commercial uses, including restaurants, are common along Marine Avenue and serve visitors and residents. As conditioned, the Project will be compatible with the land uses permitted within the surrounding neighborhood.
2. Implementation of the Project will result in a new building that is constructed specifically
for the restaurant. The site will maintain access from Marine Avenue and the alley to the rear.
3. The Project is adjacent to residential dwelling units to the rear across the alley and abuts a mixed-use development with a residential unit above to the north. The project includes
a sound-dampening wall on both sides that will help to attenuate the Property, limiting
noise and helping to maintain compatibility. Furthermore, all patrons must vacate the restaurant by the designated closing time. The earlier closing hour will help to ensure the use remains compatible with the surrounding neighborhood.
4. The NBPD has reviewed the Project and has no objections. The operational conditions
of approval recommended by the NBPD related to the sale of alcoholic beverages will
help ensure compatibility with the surrounding uses and minimize alcohol-related impacts. The Project has been conditioned to ensure the welfare of the surrounding community.
5. The Project includes conditions of approval to ensure that potential conflicts are
minimized to the greatest extent possible.
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Finding:
E. The site is physically suitable in terms of design, location, shape, size, operating
characteristics, and the provision of public and emergency vehicle (e.g., fire and medical)
access and public services and utilities. Facts in Support of Finding:
1. The Project is a smaller 1,102-square-foot nonresidential structure with 999 square feet of outdoor dining area on a 2,250-square-foot lot. There is no curb cut along Marine Avenue. Vehicular access is only provided by way of the 10-foot-wide alley to the rear of the Property. The design, size, location, and operating characteristics of the use are
compatible with the surrounding neighborhood.
2. If approved, the Applicant will be required to obtain approval of the Orange County Health Department prior to opening for business. The Project must comply with the California Building Code, the California Fire Code, and all other applicable laws and ordinances to
ensure the safety and welfare of customers and employees within the establishment.
3. The Project has been reviewed by the City’s Public Works Department and Fire Department. Adequate public and emergency vehicle access, public services, and utilities are provided to the Property. Any additional utilities upgrades required for the
new construction will be required at plan check for the building permit.
4. The tenant improvements to the Property will be reviewed to comply with all Building, Public Works, and Fire Codes. All City ordinances and all conditions of approval will be complied with.
Finding:
F. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard to
the public convenience, health, interest, safety, or general welfare of persons residing or
working in the neighborhood of the proposed use. Fact in Support of Finding:
The Project has been reviewed and includes conditions of approval to help ensure that potential
conflicts with the surrounding land uses are minimized to the greatest extent possible. Adjustment to Off-Street Parking Requirements
In accordance with Sections 20.40.110 (Adjustments to Off-Street Parking Requirements) and
21.40.110 (Off-Site Parking) of the NBMC, the following conditions and facts in support of such conditions are set forth:
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Finding:
G. The applicant has provided sufficient data, including a parking study if required by the
Director, to indicate that parking demand will be less than the required number of spaces
or that other parking is available (e.g., City parking lot located nearby, on-street parking
available, greater than normal walk in trade, mixed-use development).
Facts in Support of Finding:
1. Fact 2 of Finding B is hereby incorporated by reference. 2. A parking study from November 14, 2022, was prepared by Urban Crossroads (“study”).
The study references the City’s 2008 Balboa Island Parking Policy Plan, which identifies
Balboa Island as a dense community of residential and commercial uses with a limited parking supply and a high parking demand. This Policy Plan recommends encouraging alternative modes of transportation. The study evaluates survey data from four existing restaurants on Balboa Island. These are Ciao Balboa with 68 interior seats, Royal Hen
with 60 interior seats, Snipe Island Crafthouse with 48 interior seats and two outdoor
seats, and Wilma’s Patio with 150 interior seats and 20 outdoor seats. All the referenced restaurants do not have any on-site parking and are reliant on the existing on-street parking supply or other modes of transit, such as public transportation, carpooling, bicycling, or walking. As demonstrated by the survey data, employees and patrons
frequently use widely available alternative modes of transportation.
3. The study was reviewed by the City’s Traffic Engineer and its methodology was accepted as reasonable with a condition of approval in place to regulate employee parking and transportation to the site.
4. As conditioned, employees of the restaurant will be encouraged to park off Balboa Island, carpool, bicycle, or walk through an employer incentive program. Finding:
H. A parking management plan shall be prepared in compliance with subsection (C) of this
section (Parking Management Plan).
Fact in Support of Finding:
As indicated in Facts 2, 3, and 4 in Finding G, the study concludes that there is no off-street parking available, which is typical of commercial uses along Marine Avenue. However, in compliance with NBMC Subsection 20.40.110(C) (Adjustments to Off-Street Parking Requirements – Parking Management Plan), a parking management plan has been prepared
to help offset some of the site’s inadequate parking supply. Employees are encouraged to park
off Balboa Island, carpool, bicycle, or walk through an incentive program. By not providing parking, it also encourages patrons to use other means of transportation to the site; ridesharing services, carpooling, walking and bicycling are very common on Marine Avenue. Any increased
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use of street parking in the area by employees or patrons is expected to go unnoticed given the pre-existing high demand for on-street parking.
Coastal Development Permit
In accordance with Section 21.52.015(F) (Coastal Development Permits, Findings and Decision) of the NBMC, the following findings and facts in support of such findings are set forth as follows:
Finding:
I. Conforms to all applicable sections of the certified Local Coastal Program.
Facts in Support of Finding:
1. The Property is in the Coastal Zone and the Project requires a coastal development permit in accordance with Section 21.52.035(C)(2) (Projects Exempt from Coastal Development Permit Requirements – Coastal Act Exemptions – Other Existing Structures) of the NBMC to allow the demolition of the existing nonresidential building
and the construction of the new restaurant building.
2. The Property is categorized Mixed-Use Water Related (MU-W) by the Coastal Land Use Plan and is in the Mixed-Use Water (MU-W2) Coastal Zoning District. The MU-W and MU-W2 are intended to apply to waterfront properties in which marine-related uses may be intermixed with general commercial, visitor-serving commercial and residential
dwelling units on the upper floors. The site is not on the waterfront, and it is not suitable
for water-oriented uses. The proposed restaurant is considered a visitor-serving commercial use that is consistent with the stated intent and is listed as an allowed use in Table 21.22-2 of Section 21.22.020 (Mixed-Use Coastal Zoning Districts Land Uses and Permit Requirements) of the NBMC. Marine Avenue is a visitor-serving area, and
the Project is compatible with the area.
3. The Property is not located adjacent to a coastal view road or public access way. The Project is located on a site with an existing nonresidential building, complies with all applicable Local Coastal Program (LCP) development standards, and maintains an area
consistent with the existing pattern of development on Balboa Island. Additionally, the
Project does not contain any unique features that could degrade the visual quality of the Coastal Zone. 4. The Project is complementary to the area and it will offer a new dining option for both
residents of and visitors to Balboa Island.
5. Development authorized by this permit is not located in any environmentally sensitive habitat area (“ESHA”) and public access to the coast will not be blocked. Coastal access is increased by allowing commercial establishments to re-open allowing public to visit
coastal areas and provides an added amenity for visitors. The Project does not contain
ESHA, wetlands, or sandy beach area.
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Finding:
J. 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. Facts in Support of Finding:
1. The Property is located between the nearest public road and the sea or shoreline. Section 21.30A.040 (Determination of Public Access/Recreation Impacts) of the NBMC 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, the project replaces
an existing nonresidential building with a new nonresidential building. Therefore, the
Project continues a commercial land use that will not result in increased demand for public access and recreation opportunities. Furthermore, the Project is designed and sited (appropriate height, setbacks, etc.) so as not to block or impede existing public access opportunities.
2. Access to the waterfront is available along the Grand Canal less than 100 feet east of the Property, along Balboa Avenue, and along the public Balboa Island Walkway approximately 830 feet south of the site. The Project does not include any features that would obstruct access along these routes. The Project provides the minimum 10-foot rear
alley setback thereby not impeding alley access.
3. The nearest designated coastal viewpoint to the Property is on the Park Avenue Bridge, approximately 400 feet southeast. The Property is not visible from the Park Avenue Bridge since there is an intervening block of residential development between the Bridge and the
Property. The nearest designated coastal view road is Bayside Drive continuing onto the
Balboa Island Bridge. The Property is not discernible from these roads given there is an entire block of development between it and the roads. The Project complies with all applicable development standards as set forth in Title 21 (Local Coastal Program Implementation Plan) and maintains a building envelope consistent with the existing
neighborhood pattern of development.
4. The front and rear of the proposed nonresidential building contain substantial architectural treatment and visual interest, in-keeping with the design guidelines of Title 20 (Planning and Zoning) of the NBMC. The new structure would comply with the
required setbacks. There are open decks on the second floor in the front of the Property
that provide modulation and prevent the appearance of the site from being walled off from the street. Therefore, the Project does not have the potential to degrade the visual quality of the Coastal Zone or result in significant adverse impacts to existing public views.
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SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Planning Commission of the City of Newport Beach hereby finds this Project is categorically exempt from the California Environmental Quality Act pursuant to Section 15303 under Class 3 (New Construction and 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 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.
3. The Planning Commission of the City of Newport Beach hereby approves PA2021-276,
subject to the conditions set forth in Exhibit “A,” which is attached hereto and incorporated by reference. 4. 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 21 (Local Coastal Program Implementation Plan) of the NBMC. Final action taken by the City may be appealed to the Coastal Commission in compliance with Section 21.64.035 (Appeals to the Coastal Commission) of the NBMC and Title 14 California Code of Regulations, Sections 13111
through 13120, and Section 30603 of the California Public Resources Code.
PASSED, APPROVED, AND ADOPTED THIS 5TH DAY OF JANUARY, 2023. AYES: Ellmore, Harris, Klaustermeier, Lowrey, and Rosene
NOES: None ABSTAIN: None
ABSENT: None
BY:____________________________
Curtis Ellmore, Chair
BY:____________________________ Sarah Klaustermeier, Secretary
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Planning Commission Resolution No. PC2023-001 Page 14 of 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, floor
plans and building elevations stamped and dated with the date of this approval (except as
modified by applicable conditions of approval). 2. The Project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval.
3. The Applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this Use Permit.
4. The Coastal Development Permit and Conditional Use Permit, as referenced under
PA2021-276, shall expire unless exercised within 24 months from the date of approval as specified in Sections 20.54.060 and 21.54.060 (Time Limits and Extensions) of the NBMC, unless an extension is otherwise granted.
5. The Coastal Development Permit and Conditional Use Permit may be modified or
revoked by the Planning Commission should they determine that the Project 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 to constitute a public nuisance.
6. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require subsequent review and approval of the Planning Division. If changes are determined to be significant, an amendment to this Conditional Use Permit or the processing of a new Conditional Use Permit may be required.
7. The hours of operation for the restaurant shall be from 7 a.m. to 10 p.m., daily. All
patrons must vacate the patio by these designated times.
8. There shall be no live entertainment or dancing at any time.
9. All employees of the restaurant shall be encouraged to: (1) park off Balboa Island, (2)
carpool, (3) bicycle, or (4) walk. The Applicant will provide incentives to those employees
who commit to using one or more of these four enumerated transportation alternatives on a consistent basis.
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Planning Commission Resolution No. PC2023-001 Page 15 of 19
10. A copy of the Resolution, including conditions of approval Exhibit “A” shall be incorporated into the Building Division and field sets of plans prior to issuance of the
building permits.
11. The Property shall not be excessively illuminated based on the luminance recommendations of the Illuminating Engineering Society of North America, or, if in the opinion of the Director of Community Development, the illumination creates an
unacceptable negative impact on surrounding land uses or environmental resources.
The Director may order the dimming of light sources or other remediation upon finding that the site is excessively illuminated. 12. Prior to the issuance of a building permit, the Applicant shall pay any unpaid
administrative costs associated with the processing of this application to the Planning
Division. 13. All noise generated by the Project shall comply with the provisions of Chapter 10.26 (Community Noise Control) and other applicable noise control requirements of the
NBMC. The maximum noise shall be limited to no more than depicted below for the
specified time periods unless the ambient noise level is higher:
Between the hours of 7 AM
and 10 PM
Between the hours of 10
PM and 7 AM
Location Interior Exterior Interior Exterior
Residential Property 45dBA 55dBA 40dBA 50dBA
Residential Property located
within 100 feet of a commercial
property
45dBA 60dBA 45dBA 50dBA
Mixed Use Property 45dBA 60dBA 45dBA 50dBA
Commercial Property N/A 65dBA N/A 60dBA
14. Should the Property be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing agent.
15. Construction activities shall comply with Section 10.28.040 (Construction Activity – Noise Regulations) of the NBMC, which restricts hours of noise-generating construction
activities that produce noise to between the hours of 7 a.m. and 6:30 p.m., Monday through Friday, and 8 a.m. and 6 p.m. on Saturday.
16. No outside paging system shall be utilized in conjunction with the outdoor dining patio.
17. All trash shall be stored within the building or within dumpsters stored in the trash enclosure (three walls and a self-latching gate) or otherwise screened from view of neighboring properties, except when placed for pick-up by refuse collection agencies. The trash enclosure shall have a decorative solid roof for aesthetic and screening purposes.
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Planning Commission Resolution No. PC2023-001 Page 16 of 19
18. Trash receptacles for patrons shall be conveniently located both inside and outside of the establishment, however, not located on or within any public property or right-of-way.
19. The exterior of the business shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 5 feet of the premises.
20. The Applicant shall ensure that the trash dumpsters and/or receptacles are maintained
to control odors. This may include the provision of either fully self-contained dumpsters or periodic steam cleaning of the dumpsters, if deemed necessary by the Planning Division. Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14 (Water and Sewers) of the NBMC, including all future
amendments (including Water Quality related requirements).
21. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10 p.m. and 7 a.m. on weekdays and Saturdays and between the hours of 10 p.m. and 9 a.m. on Sundays and Federal holidays, unless otherwise approved by the Director of
Community Development, and may require an amendment to this Use Permit.
22. Storage outside of the building in the front or at the rear of the property shall be prohibited, with the exception of the required trash container enclosure.
23. A Special Events Permit is required for any event or promotional activity outside the
normal operational characteristics of the approved use, as conditioned, or that would attract large crowds, involve the sale of alcoholic beverages, include any form of on-site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits.
24. 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 Arc Balboa Island (PA2021-276). 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.
Fire Department 25. Automatic fire sprinklers shall be required for all new construction.
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Planning Commission Resolution No. PC2023-001 Page 17 of 19
Building Division 26. The Applicant is required to obtain all applicable permits from the City’s Building Division and Fire Department. The construction plans must comply with the most recent, City-
adopted version of the California Building Code. The construction plans must meet all
applicable State Disabilities Access requirements. Approval from the Orange County Health Department is required prior to the issuance of a building permit. 27. The Applicant shall employ the following best available control measures (“BACMs”) to
reduce construction-related air quality impacts:
Dust Control • Water all active construction areas at least twice daily. • Cover all haul trucks or maintain at least two feet of freeboard.
• Pave or apply water four times daily to all unpaved parking or staging areas.
• Sweep or wash any site access points within two hours of any visible dirt deposits on any public roadway. • Cover or water twice daily any on-site stockpiles of debris, dirt or other dusty material.
• Suspend all operations on any unpaved surface if winds exceed 25 mph.
Emissions • Require 90-day low-NOx tune-ups for off road equipment. • Limit allowable idling to 30 minutes for trucks and heavy equipment. Off-Site Impacts
• Encourage car-pooling for construction workers.
• Limit lane closures to off-peak travel periods. • Park construction vehicles off traveled roadways. • Wet down or cover dirt hauled off-site. • Sweep access points daily.
• Encourage receipt of materials during non-peak traffic hours.
• Sandbag construction sites for erosion control. Fill Placement • The number and type of equipment for dirt pushing will be limited on any day to ensure that SCAQMD significance thresholds are not exceeded.
• Maintain and utilize a continuous water application system during earth
placement and compaction to achieve a 10 percent soil moisture content in the top six-inch surface layer, subject to review/discretion of the geotechnical engineer.
28. A list of “good housekeeping” practices will be incorporated into the long-term post-
construction operation of the site to minimize the likelihood that pollutants will be used, stored or spilled on the site that could impair water quality. These may include frequent parking area vacuum truck sweeping, removal of wastes or spills, limited use of harmful fertilizers or pesticides, and the diversion of storm water away from potential sources of
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Planning Commission Resolution No. PC2023-001 Page 18 of 19
pollution (e.g., trash receptacles and parking structures). The Stage 2 WQMP shall list and describe all structural and non-structural BMPs. In addition, the WQMP must also
identify the entity responsible for the long-term inspection, maintenance, and funding for
all structural (and if applicable Treatment Control) BMPs. Public Works Department
29. All required landings and handrails shall be located entirely on the Property. No portion
of the required landings and handrails shall project into the public right-of-way.
30. All damaged curb, gutter, and sidewalk along the Marine Avenue frontage shall be reconstructed pursuant to the applicable City Standards. All damaged alley panels along
the Project frontage shall also be constructed pursuant to the applicable City Standards.
Police Department
31. The applicant shall comply with all federal, state, and local laws, and all conditions of
the Alcoholic Beverage License. Material violation of any of those laws or conditions in
connection with the use is a violation and may be cause for revocation of the use permit.
32. All owners, managers and employees selling alcoholic beverages shall undergo and
successfully complete a certified training program in responsible methods and skills for
selling alcoholic beverages within 60 days of hire. This training must be updated every
3 years regardless of certificate expiration date. The certified program must meet the
standards of the certifying/licensing body designated by the State of California. The
establishment shall comply with the requirements of this section within 60 days of
approval. Records of each owner’s manager’s and employee’s successful completion
of the required certified training program shall be maintained on the premises and shall
be presented upon request by a representative of the City of Newport Beach.
33. Approval does not permit the premises to operate as a bar, tavern, cocktail lounge or
nightclub as defined by the NBMC.
34. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of
food during the same period. The licensee shall at all times maintain records, which
reflect separately the gross sales of food and the gross sales of alcoholic beverages of
the licensed business. These records shall be kept no less frequently than on a quarterly
basis and shall be made available to the Police Department on demand.
35. No alcoholic beverages shall be consumed on any property adjacent to the licensed
premises under the control of the licensee.
36. There shall be no dancing allowed on the premises.
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Planning Commission Resolution No. PC2023-001 Page 19 of 19
37. No games or contests requiring or involving the consumption of alcoholic beverages
shall be allowed.
38. There shall be no reduced-price alcoholic beverage promotions after 9 p.m.
39. Food service shall be made available to patrons until closing.
40. Petitioner shall not share any profits or pay any percentage or commission to a promoter
or any other person based upon monies collected as a door charge, cover charge, or
any other form of admission charge, including minimum drink orders or the sale of drinks.
41. Any event or activity staged by an outside promoter or entity, where the applicant,
operator, owner or his employees or representatives share in any profits, or pay any
percentage or commission to a promoter or any other person based upon money
collected as a door charge, cover charge or any other form of admission charge is
prohibited.
42. “VIP” passes or other passes to enter the establishment, as well as door charges, cover
charges, or any other form of admission charge, including minimum drink order of the sale
of drinks is prohibited (excluding charges for prix fixe meals).
43. The applicant shall maintain a security recording system with a 30-day retention and make those recording available to police upon request.
44. The exterior of the business shall be maintained free of litter and graffiti at all times.
The owner or operator shall provide for daily removal of trash, litter, and debris from
the premises and on all abutting sidewalks within 20 feet of the premises. Graffiti shall be removed within 48 hours of written notice from the City.
45. There shall be no exterior advertising or signs of any kind or type, including advertising
directed to the exterior from within, promoting or indicating the availability of alcoholic
beverages. Interior displays of alcoholic beverages or signs which are clearly visible to
the exterior shall constitute a violation of this condition.
46. Strict adherence to maximum occupancy limit is required. Additional Conditions
47. Patrons shall not enter or exit through the alley entrance.
48. Employees of the restaurant shall not use the alley as a break area or smoking area.
49. Drop-off and pick-up of employees shall be prohibited in the alley.
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