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HomeMy WebLinkAboutZA2023-016 - APPROVING A MINOR USE PERMIT TO ALLOW A TYPE 41 (ON-SALE BEER AND WINE) ALCOHOLIC BEVERAGE CONTROL LICENSE AT AN EXISTING CAFÉ, SCRATCH BAKERY CAFÉ, IN THE FASHION ISLAND SHOPPING CENTER, LOCATED AT 561 NEWPORT CENTER DRIVE (PA2022-109)RESOLUTION NO. ZA2023-016 A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH, CALIFORNIA APPROVING A MINOR USE PERMIT TO ALLOW A TYPE 41 (ON-SALE BEER AND WINE) ALCOHOLIC BEVERAGE CONTROL LICENSE AT AN EXISTING CAFÉ, SCRATCH BAKERY CAFÉ, IN THE FASHION ISLAND SHOPPING CENTER, LOCATED AT 561 NEWPORT CENTER DRIVE (PA2022-109) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Real Food Companies, with respect to property located at 561 Newport Center Drive, and legally described as Parcel 1, Block 221, Page 30 requesting approval of a minor use permit. 2. The applicant requests a minor use permit for an existing eating and drinking establishment, Scratch Bakery Café, to operate with a Type 41 (On-Sale Beer and Wine) Alcoholic Beverage Control (ABC) license. The café operates an accessory outdoor dining patio within an adjacent common area. The request does not include any physical changes to the existing establishment. No late hours (after 11:00 p.m.), live entertainment, or dancing is proposed. 3. The subject property is designated Regional Commercial (CR) by the General Plan Land Use Element and is located within the North Newport Center (PC56) Zoning District. 4. The subject property is not located within the coastal zone. 5. A public hearing was held on March 16, 2023 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 Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. 2. The Class 1 exemption includes the 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 existing café is located within Fashion Island and has an associated outdoor dining patio within a common area of the mall. The proposed project is a request to obtain an ABC Zoning Administrator Resolution No. ZA2023-016 Page 2 of 11 10-18-21 license and does not include any interior or exterior alterations to the café and no increase in gross floor area or net public area. SECTION 3. REQUIRED FINDINGS. Alcohol Sales In accordance with Section 20.48.030 (Alcohol Sales) of the NBMC, the Zoning Administrator shall consider the following findings prior to the approval of a new or amended alcohol sales establishment: Finding A. The use is consistent with the purpose and intent of NBMC Section 20.48.030 (Alcohol Sales). Facts in Support of Finding In finding that the Project is consistent with Section 20.48.030 (Alcohol Sales) of the NBMC, the following criteria must be considered: i. The crime rate in the reporting district and adjacent reporting districts as compared to other areas in the City. a. The property is in an area the Newport Beach Police Department (NBPD) has designated as Reporting District (RD) 39. RD 39 is bordered to the north by San Joaquin Hills Road, to the east by MacArthur Boulevard, to the south by East Coast Highway, and to the West by Jamboree Road. The NBPD is required to report offenses of Part One Crimes combined with all arrests for other crimes, both felonies, and misdemeanors (except traffic citations) to the California Department of Alcoholic Beverage Control (ABC). Part One Crimes are the eight (8) most serious crimes defined by the FBI Uniform Crime Report: criminal homicide, rape, robbery, aggravated assault, burglary, larceny- theft, auto theft, and arson. RD 39 is considered a higher crime area, as compared to other RDs within the City. The RD 39 crime count for 2021 is 334, which is 81 percent over the citywide average of 140 crimes per RD. The higher crime rate is largely attributable to the concentration of commercial land uses and the high ratio of nonresidential to residential uses. For example, the RD to the southeast, RD 44, contains the entire commercial corridor along East Coast Highway within Corona del Mar. RD 44 is smaller in land area than RD 39 yet it maintains a comparable number of crimes due to the similarly high ratio of nonresidential to residential uses. The remaining neighboring RDs, 43 and 47, are primarily residential with few commercial uses. As a result, they have a significantly lower number of crimes. Their crime count is 37 and 50, respectively. b. The NBPD has reviewed the project and has no objection to the Type 41 ABC license, subject to appropriate conditions of approval which have been incorporated into Exhibit “A” of this Resolution. These conditions include provisions such as the requirement that Zoning Administrator Resolution No. ZA2023-016 Page 3 of 11 10-18-21 all owners, managers, and employees selling alcoholic beverages shall undergo and complete a certified training program in responsible methods and skills for selling alcoholic beverages, a prohibition on live entertainment, and no games or contests requiring or involving the consumption of alcoholic beverages. ii. The number of alcohol-related calls for service, crimes, or arrests in the reporting district and in adjacent reporting districts. a. Compared to the adjacent RDs, RD 39 had a higher percentage of alcohol-related crimes in 2021. The higher number of crimes is to be expected given the crime figure includes driving under the influence, public intoxication, and liquor law violations. These are crimes associated with commercial establishments. RD 43 and 47, which are primarily residential, are unlikely to have similar crime incidents. The alcohol- related crimes of RD 39 were slightly higher than that of its neighbor RD 44 however the difference was not substantial enough to warrant objection from the NBPD. 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. a. The café is located within the Fashion Island mall and features an interior dining space and an accessory outdoor patio adjacent to the common area of the mall. Fashion Island does not abut any sensitive land uses and is separated from other structures and uses by parking lots, a busy roadway, and other commercial uses. Residential uses are permitted in the northern sections of PC56; however, the café is separated from the nearest residential use by over 1,000 feet. There are no day care centers, hospitals, parks, places of worship, or schools within the mall. While some minors are expected to be present at the mall, the mall is intended to attract a variety of users and not specifically minors. b. Eating and drinking establishments with incidental alcohol service are common within the mall and the ABC license is not anticipated to alter the operational characteristics of the current café such that it becomes detrimental to the area. c. Condition of approval no. 21 prohibits the café from operating as a bar or tavern which should help ensure compatibility with the surrounding businesses. Late hours are not proposed as part of this project nor are they allowed by this use permit. iv. The proximity to other establishments selling alcoholic beverages for either off-site or on-site consumption. a. There are several other restaurants within the mall. These include Fleming’s Steak House, True Food Kitchen, Back Bay Tavern at Whole Foods Market, P.F. Chang’s and 59th & Lex Café’. Generally, these restaurants operate with either a Type 41 (On- Sale Beer and Wine) or a Type 47 (On-Sale General) ABC license. There is no evidence suggesting that these uses have been detrimental to the surrounding vicinity. Zoning Administrator Resolution No. ZA2023-016 Page 4 of 11 10-18-21 Additionally, there is no evidence to suggest that the approval of this alcohol sales license would create any new objectionable conditions. v. Whether or not the proposed amendment will resolve any current objectionable conditions. a. No objectionable conditions are presently occurring at the Property. b. Approving the Project will allow the existing café to diversify its offerings as a convenience to its patrons. The NBPD acknowledges the addition of alcohol to the existing restaurant is a new privilege; however, the project has been reviewed and conditioned to help ensure that the purpose and intent of Section 20.48.030 (Alcohol Sales) of the NBMC are maintained and that a healthy environment for residents and businesses is preserved. Minor Use Permit In accordance with Section 20.52.020.F (Findings and Decision) of the Newport Beach Municipal Code, the following findings and facts in support of the findings for a use permit 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 Land Use Element of the General Plan designates the project site as Regional Commercial (CR), which is intended to provide retail, entertainment, service, and supporting uses that serve local and regional residents. The proposed eating and drinking establishment with alcoholic beverage services is a use that serves local and regional residents and is consistent with land uses in the CR land use designation. 2. Land Use Element Policy LU 6.14.1 Fashion Island [“CR” designation] is intended to: Provide the opportunity for an additional anchor tenant, other retail, and/or entertainment and supporting uses that complement, are integrated with, and enhance the economic vitality of existing development. A maximum of 213,257 square feet of retail development capacity specified by Table LU2 (Anomaly Locations) may be reallocated for other permitted uses in Newport Center, provided that the peak hour vehicle trips generated do not exceed those attributable to the underlying retail entitlement. The project does not include the addition of floor area, an increase in the number of seats for the café, or the transfer of development capacity to the project site. Scratch Bakery Café is intended to serve employees of and visitors to the Fashion Island Mall and the surrounding area. The applicant requests the addition of alcohol service to an eating and drinking establishment, which will complement the food served daily. The project is not expected to result in increased traffic. Zoning Administrator Resolution No. ZA2023-016 Page 5 of 11 10-18-21 3. The subject 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 of this Zoning Code and the Municipal Code: Facts in Support of Finding: 1. Fashion Island is the primary retail hub within Newport Center and is developed with retail, dining, and commercial entertainment uses. Permitted uses for Fashion Island include uses in support of the existing retail, dining, and commercial entertainment uses. Fashion Island is intended to be a vibrant regional retail and entertainment center and a day/evening destination with a wide variety of uses that will serve visitors, residents, and employees of the area. A café with alcoholic beverage sales is consistent with the purposes of the Fashion Island Sub-Area of PC56. 2. Eating and drinking establishments are permitted uses within the Fashion Island Sub- Area of the North Newport Center Planned Community Zoning District. Pursuant to the Planned Community Text, the on-premises sale of alcohol in conjunction with an eating and drinking establishment requires a minor use permit. 3. The proposed eating and drinking establishment is within the limits of the cumulative floor area allocated for Fashion Island. 4. No physical improvements are proposed as part of this project therefore no development standards from PC56 are applicable at this time. 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. The Fashion Island mall is developed around an internal pedestrian network and surrounded by parking lots, providing little or no connectivity to adjoining office, entertainment, or residential areas. The proposed project should have no interaction with the surrounding uses in the vicinity and therefore should be compatible. 2. Fact (iv)(a) in support of Finding A incorporated by reference. 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: Zoning Administrator Resolution No. ZA2023-016 Page 6 of 11 10-18-21 Facts in Support of Finding 1. The application includes the addition of an ABC license to an existing bakery café. There is no addition of floor area associated with the project. The size of the kitchen does not change as part of the project nor is there an increase in the number of seats. 2. The Fashion Island mall is an existing development that is adequately served by utilities and can be accessed by emergency vehicles. 3. Fashion Island features a shared parking pool provided through on-site surface parking lots and parking structures. There should be no noticeable change in parking demand as a result of this project as the project is simply an enhanced menu for customers that would otherwise already be visiting the mall to shop and dine. 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. Facts in Support of Finding 1. Scratch Bakery Café has been in operation since 2021, and a café has been in operation at the tenant space since 2010. The café has not proven detrimental to the surrounding businesses. Adding alcoholic beverage options to the menu is not expected to change this, given the included conditions of approval from the NBPD. 2. The café with expanded privileges should have a positive impact on the area. The café serves both the local shoppers and visitors to Fashion Island. It promotes economic activity in an area which the General Plan intends to be busy with a variety of commercial uses. 3. The Project includes conditions of approval to ensure that potential conflicts with the surrounding land uses are minimized to the greatest extent possible. The operator is required to take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance within the facility, adjacent properties, or surrounding public areas, sidewalks, or parking lots of the restaurant, during business hours, if directly related to the patrons of the establishment. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: Zoning Administrator Resolution No. ZA2023-016 Page 7 of 11 10-18-21 1. The Zoning Administrator of the City of Newport Beach hereby finds this project is categorically exempt from the California Environmental Quality Act pursuant to Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3 because it has no potential to have a significant effect on the environment. 2. The Zoning Administrator of the City of Newport Beach hereby approves Minor Use Permit PA2022-109, 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 Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED, AND ADOPTED THIS 16th DAY OF March, 2023. Zoning Administrator Resolution No. ZA2023-016 Page 8 of 11 10-18-21 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 and floor plans stamped and dated with the date of this approval (except as modified by applicable conditions of approval). 2. Any change in operational characteristics, expansion in area, or other modification to the approved plans, may require an amendment to this Use Permit or the processing of a new Use Permit. 3. The hours of operation for the restaurant shall be limited to 7 a.m. to 9 p.m., daily. 4. The project is subject to all applicable City ordinances, policies, and standards unless specifically waived or modified by the conditions of approval. 5. The Applicant shall comply with all federal, state, and local laws. A material violation of any of those laws in connection with the use may be cause for revocation of this Use Permit. 6. This Use Permit may be modified or revoked by the Zoning Administrator should they determine that the proposed uses or conditions under which the use is being operated or maintained are detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 7. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 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 7:00AM and 10:00PM Between the hours of 10:00PM and 7:00AM Location Interior Exterior Interior Exterior Residential Property 45dBA 55dBA 40dBA 50dBA Residential Property located within 100 feet of a commercial property 45dBA 60dBA 45dBA 50dBA Mixed Use Property 45dBA 60dBA 45dBA 50dBA Commercial Property N/A 65dBA N/A 60dBA 8. 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 Zoning Administrator Resolution No. ZA2023-016 Page 9 of 11 10-18-21 current business owner, property owner, or the leasing agent. 9. No outside paging system shall be utilized in conjunction with this establishment. 10. All trash shall be stored within the building or within dumpsters stored in the trash enclosure (three [3] walls and a self-latching gate) or otherwise screened from view of neighboring properties, except when placed for pick-up by refuse collection agencies. The trash enclosure shall have a decorative solid roof for aesthetic and screening purposes. 11. 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. 12. The exterior of the business shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for the daily removal of trash, litter debris, and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. 13. The Applicant shall ensure that the trash dumpsters and/or receptacles are maintained to control odors. This may include the provision of either fully self-contained dumpsters or periodic steam cleaning of the dumpsters if deemed necessary by the Planning Division. Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14, including all future amendments (including Water Quality related requirements). 14. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10:00 p.m. and 7:00 a.m. on weekdays and Saturdays and between the hours of 10:00 p.m. and 9:00 a.m. on Sundays and Federal holidays unless otherwise approved by the Director of Community Development and may require an amendment to this Use Permit. 15. 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. 16. A Special Events Permit is required for any event or promotional activity outside the normal operating 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. 17. This approval shall expire and become void unless exercised within 24 months from the actual date of review authority approval, except where an extension of time is approved in compliance with the provisions of Title 20 Planning and Zoning of the Newport Beach Municipal Code. Zoning Administrator Resolution No. ZA2023-016 Page 10 of 11 10-18-21 Police Department 18. The approval is for an eating and drinking establishment with on-sale alcoholic beverage service. The type of alcoholic beverage license issued by the California Board of Alcoholic Beverage Control shall be a Type 41 (On-Sale Beer and Wine) license, in conjunction with the restaurant as the principal use of the facility. 19. All owners, managers, and employees must abide by all requirements and conditions of the Alcoholic Beverage License. 20. All owners, managers, and employees selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for selling alcoholic beverages. The certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service or other certifying/licensing body, which the State may designate. The establishment shall comply with the requirements of this section within 180 days of the issuance of the certificate of occupancy. Records of each owner’s, manager’s, and employee’s successful completion of the required certified training program shall be maintained on the premises and shall be presented upon request by a representative of the City of Newport Beach. 21. Approval does not permit the premises to operate as a bar, tavern, cocktail lounge, or nightclub as defined by the NBMC. 22. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The licensee shall always 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. 23. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee. 24. There shall be no live entertainment or dancing allowed on the premises. 25. No games or contests requiring or involving the consumption of alcoholic beverages shall be allowed. 26. There shall be no reduced-price alcoholic beverage promotions after 9 p.m. 27. Food service from the regular menu shall be made available to patrons until closing. 28. 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. Zoning Administrator Resolution No. ZA2023-016 Page 11 of 11 10-18-21 29. 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. 30. “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). 31. Strict adherence to maximum occupancy limits is required. 32. The Applicant shall maintain a security recording system with 30-day retention and make those recordings available to police upon request. 33. 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. 34. No off-sales of alcohol shall be permitted. 35. 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 Scratch Bakery Café Alcohol License including, but not limited to, Minor Use Permit (PA2022-109). This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorney’s 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 the 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.