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HomeMy WebLinkAboutPC2023-028 - SUPERCEDING UP2018-196 AND APPROVING A CONDITIONAL USE PERMIT AND COASTAL DEVELOPMENT PERMIT TO ALLOW DANCING AND LIVE ENTERTAINMENT WITH AN INCREASED OCCUPANT LOAD AND WAIVER OF REQUIRED OFF-STREET PARKING FOR AN EXISTING BAR LOCATED AT 121RESOLUTION NO. PC2023-028 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA SUPERCEDING UP2018-196 AND APPROVING A CONDITIONAL USE PERMIT AND COASTAL DEVELOPMENT PERMIT TO ALLOW DANCING AND LIVE ENTERTAINMENT WITH AN INCREASED OCCUPANT LOAD AND WAIVER OF REQUIRED OFF-STREET PARKING FOR AN EXISTING BAR LOCATED AT 121 MC FADDEN PLACE (PA2022-0249) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Mario Marovic (“Applicant”), concerning property located at 121 Mc Fadden Place, and legally described as Lots 15 and 16 of Block 21 of Newport Beach, County of Orange, State of California, as per Map recorded in Book 3, Page 26 of Miscellaneous Maps, in the office of the County Recorder of said County (“Property”). 2. The Applicant requests a conditional use permit (“CUP”) and a coastal development permit (“CDP”) to increase the allowed occupant load from 260 to 290 of the existing bar establishment (“Stag Bar”), waive the eight (8) required parking spaces, and to allow for live entertainment and dancing between the hours of 11:00 a.m. and 2:00 a.m., daily. The existing hours of operation for the Stag Bar are from 6:00 a.m. to 2:00 a.m., daily and are not proposed to be modified (“Project”). 3. 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. 4. 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. 5. A public hearing was held on August 3, 2023 in the Council Chambers at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the public hearing was given in accordance with the California Government Code Section 54950 et seq. (“Ralph M. Brown Act”) and Chapters 20.62 and 21.62 (Public Hearings) of the Newport Beach Municipal Code (“NBMC”). Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. The Project is exempt from the California Environmental Quality Act (“CEQA”) under 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. Planning Commission Resolution No. PC2023-028 Page 2 of 19 01-17-23 2. Section 15301 exempts interior or exterior alterations involving interior partitions, plumbing, and electrical conveyances. The Project is an increase in occupant load with no additional floor area or exterior modifications, as well as the addition of live entertainment and dancing. These additions are a negligible increase in current operations. SECTION 3. REQUIRED FINDINGS. Alcohol Sales In accordance with Section 20.48.030(C)(3) (Alcohol Sales) 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 Section 20.48.030 (Alcohol Sales) of the Zoning Code. Facts in Support of Finding: In finding that the Project is consistent with Section 20.48.030 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. 1. The Property is located in Reporting District 15 (“RD 15”). At the time of review for this Project, only 2021 crime statistics were available due to the State of California’s transition in uniform crime reporting for compliance with Federal requirements. The number of reported Part One Crimes within RD 15 in 2021 was 187 crimes, which is a 17 percent increase from the 159 Part One Crimes within RD 15 recorded in 2018. This amount is higher than adjacent reporting districts and the citywide average. Part One Crimes are the eight most serious crimes defined by the FBI Uniform Crime Report – homicide, rape, robbery, aggravated assault, burglary, larceny-theft, auto theft, and arson. The higher crime rate is largely due to the number of visitors to the Balboa Peninsula, the high concentration of restaurants, and the high ratio of nonresidential to residential uses clustered in the commercial and mixed-use districts. The McFadden Square area has historically been a business and recreation hub for residents and tourists, drawing a large number of visitors year-round but particularly in the summer months. While the area does have a high concentration of alcohol licenses, this establishment maintains an existing license. Therefore, the Project will not result in any increase in the number of alcohol licenses. The service of alcoholic beverages provides menu options for customers and potentially enhances the economic viability of the business, while the CUP and Operator License will provide greater enforcement options. Planning Commission Resolution No. PC2023-028 Page 3 of 19 01-17-23 2. The Newport Beach Police Department (“NBPD”) has reviewed the proposal and has provided appropriate conditions of approval, which are attached hereto as Exhibit “A,” and incorporated herein by reference to this resolution. The operation of the establishment includes the approved floor plan, business hours that are not changing, a security plan, and the requirement to obtain an operator license. The Operator License provides an additional tool for the NBPD to control the use, especially should objectionable activities occur at the site. ii. The numbers of alcohol-related calls for service, crimes, or arrests in the reporting district and in adjacent reporting districts. 1. RD 15 has a higher number of arrests recorded in 2021, compared to adjacent reporting districts. From January 1, 2021, through December 31, 2021, the NBPD reported 582 arrests in RD 15. There were 12 arrests at the Property; however, not every arrest was related to the Property and may have been related to a dispatch event in the direct vicinity. 2. Fact in Support of Finding (A)(i)(2) is hereby incorporated by reference. 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 Project site is in a mixed-use zoning district which is intended for residential uses that are intermixed with nonresidential uses. The nearest residential zoning district is located approximately 315 feet east of the Property, at the corner of West Balboa Boulevard and 21st Street. However, the nearest residential units are located 10 feet across the side alley to the northwest of the Property in a mixed-use building. 2. The nearest recreational facilities, the beach and Newport Pier, are located approximately 300 feet to the southwest of the Property. The nearest church, Our Lady of Mount Carmel Church, is located approximately 0.5 miles to the east along West Balboa Boulevard. The nearest school, Newport Elementary School, is located 0.7 miles to the east along West Balboa Boulevard. The nearest daycare center, Children’s Center by the Sea, is approximately 0.6 miles to the east along West Balboa Boulevard. The Project is surrounded by other commercial, retail, and office uses on the ground level. 3. The Balboa Peninsula is generally characterized by a high number of visitors, in which commercial and residential zoning districts are proximate to one another and eating and drinking establishments with alcohol service are common. The included conditions of approval will help minimize nuisances that the establishment could have to surrounding uses and help to ensure that the use remains compatible with the surrounding community. iv. The proximity to other establishments selling alcoholic beverages for either off-site or on-site consumption. Planning Commission Resolution No. PC2023-028 Page 4 of 19 01-17-23 1. The per capita ratio of one license for every 76 residents is higher than all adjacent Census Tracts (except for Census Tract 629) and the citywide average. This is due to the higher concentration of commercial land uses, many of them visitor-serving, in McFadden Square, Lido Marina Village and Cannery Village, and lower number of residential populations in the RD 15 area. Nearby establishments selling alcohol include the Taco Bell Cantina, 21 Oceanfront, Dory Deli, Beach Ball, Blackie’s and several others located in the McFadden Square area. 2. While the license-to-resident ratio is higher than average and the Property is proximate to other establishments selling alcoholic beverages, the physical and operational characteristics of the establishment would make the continuation of alcoholic beverage sales appropriate at this location. v. Whether or not the proposed amendment will resolve any current objectionable conditions. 1. No objectionable conditions are presently occurring at the Property. 2. A bar has been operating at the Property since the early 1900s. It was remodeled and expanded in 2015, into an adjacent liquor store to include an enlarged kitchen and outdoor patio dining area. With the proposed occupant load increase, the building will continue to comply with all current California Building Code and California Fire Code requirements. 3. All employees serving alcohol will be required to be at least 21 years of age, and undergo, and successfully complete, Responsible Beverage Service (“RBS”) training. Approval of this application will require the operator to obtain a new Operator License pursuant to chapter 5.25 (Operator License for Establishments Offering Alcoholic Beverages for On-Site Consumption in Combination with Late Hours, Entertainment, and/or Dance) of the NBMC. The Operator License will provide enhanced tools to control noise, loitering, litter, disorderly conduct, parking/circulation and other potential disturbances that could result from the use, and will provide the NBPD with means to modify, suspend, or revoke the operator’s ability to maintain late-hour operations. Conditional Use Permit In accordance with Section 20.52.020(F) (Use Permit, Required Findings) 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 category for the Property is Mixed-Use Water Related (MU-W2). The MU-W2 designation applies to waterfront properties in which marine-related Planning Commission Resolution No. PC2023-028 Page 5 of 19 01-17-23 uses may be intermixed with general commercial, visitor-serving commercial, and residential dwelling units on the upper floors. The bar was renovated and expanded in 2015, to include a larger kitchen and dining area, and is the primary occupant of the Property. Although it was a nonconforming land use, it was determined to be consistent with this land use designation with the previous CUP approval. Eating and drinking establishment uses can be expected to be found in this area and similar locations and are complementary to the surrounding commercial and residential uses. 2. The Project will not result in an increase in the floor area ratio; therefore, it is consistent with the Land Use Element development limitations. The proposed dance floor is within existing customer floor area. 3. The proposed occupant load increase from 260 to 290 persons is consistent with General Plan Land Use Policy LU6.8.2 (Component Districts), which emphasizes that McFadden Square should be utilized as one of the primary activity centers within the City. The increase in occupant load will allow additional people to enjoy the existing eating and drinking establishment as a visitor- and local-serving convenience. The addition of live entertainment and dancing will also provide additional activities for residents and visitors in the neighborhood. The occupant load increase has been reviewed by the City’s Fire Department and Building Division and is consistent with all applicable code standards. 4. Eating and drinking establishments are common in the vicinity along the Balboa Peninsula and are frequented by visitors and residents. The Stag Bar is compatible with the land uses permitted within the surrounding neighborhood. The increased occupant load, with live entertainment and dancing, will allow the Applicant to continue to improve and revitalize the Property and the surrounding neighborhood. 5. The Property is not 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 the Zoning Code and the Municipal Code. Facts in Support of Finding: 1. The Property is in the Mixed-Use Water Related (MU-W2) Zoning District. The MU-W2 designation applies to waterfront properties in which marine-related uses may be intermixed with general commercial, visitor-serving commercial and residential dwelling units on the upper floors. Since a bar is not listed as a permitted or a conditionally permitted use within this district, the establishment is considered a nonconforming use. However, a legal nonconforming use can be expanded subject to a CUP pursuant to Section 20.38.050 (Nonconforming Uses) of the NBMC. 2. A bar has been operating at the Property since the early 1900s. It was expanded and renovated in 2015, to add a kitchen, additional interior dining areas, and an outdoor patio area at the expense of a retail liquor store with a CUP authorized by the Planning Planning Commission Resolution No. PC2023-028 Page 6 of 19 01-17-23 Commission in accordance with Section 20.38.050 (Nonconforming Uses) of the NBMC which an expansion or intensification of legal nonconforming uses in nonresidential zones subject to a conditional use permit. 3. Since the Property does not provide on-site parking, the Project is considered nonconforming due to parking. The Project is considered an intensification of use. However, per Sections 20.38.060 and 21.38.060 (Nonconforming Parking) of the NBMC, nonresidential structures that do not provide the required number of parking spaces may be enlarged up to ten (10) percent of its existing gross floor area, as long as the required parking for the additional area is provided or a reduction in the number of parking spaces is approved with compliance to the provisions in the Zoning Code and Title 21. The Project’s request for increase in occupant load results in an increase in required parking which is unavailable on-site. However, the Project does not physically increase the floor area of the establishment and is requesting a waiver of the eight (8) required spaces from the additional occupant load. 4. The Property does not provide on-site parking, but the proposed increase in occupant load is not anticipated to change the parking demand significantly. The Applicant provided a parking study for the Property in 2019 that was prepared by a qualified professional, RK Engineering Group, Inc. RK Engineering has provided an updated parking memorandum, dated June 9, 2023, which affirms that the 2019 study is valid. The McFadden Square area is adequately served by the two adjacent municipal lots throughout most of the year and the proximity to multiple commercial uses and coastal resources will result in shared trips to the project site area. 5. Additional required findings have been made which support the Project’s compliance with all applicable provisions of the NBMC, including findings for Alcohol Sales of Section 20.48.030 (Finding A), Late-Hour Operations of Section 20.48.090 (Finding G), and Coastal Development Permit of Section 21.52.015 (Findings H and I). 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. An existing condition of approval will remain which prohibits new patrons to enter after 1:00 a.m. and last call for alcohol service would occur at 1:30 a.m. The closing hour is compatible with other late-night eating and drinking establishments in the area. The NBPD has reviewed the proposed increase and has provided conditions of approval. 2. For flexibility, the Applicant has submitted two floor plans. One floor plan includes the existing pool tables and an approximately 125 square-foot dance floor. The second-floor plan shows the pool tables stored away and an approximate 230 square-foot dance floor. Both plans have been reviewed and conceptually approved by Fire, Building, and Public Works Departments. Planning Commission Resolution No. PC2023-028 Page 7 of 19 01-17-23 3. The Project includes conditions of approval to ensure that potential conflicts are minimized to the greatest extent possible. Although the eating and drinking establishment is located approximately 10 feet from residential units across the alley to the northwest, the building is oriented toward Newport and West Balboa Boulevards away from the nearby mixed-use structures. The outdoor patio area is contained by the hotel roof deck above and a 6 foot 1-inch-tall glass barrier. Activity from the establishment will be buffered from the residential uses across Newport and West Balboa Boulevards. The Applicant is also required to control trash and litter around the Property. 4. The operational conditions of approval recommended by the NBPD relative to the sale of alcoholic beverages, including an operator license, will help ensure compatibility with the surrounding uses and minimize alcohol related impacts. The Project has been conditioned to ensure the welfare of the surrounding community. 5. As part of a previous remodel, the Applicant installed a grease interceptor, provided a wash-out area that drains to the sewer line, obtained Health Department approval prior to opening for business, and complied with the California Building Code to ensure the safety and welfare of customers and employees within the establishment. 6. The Property is in a relatively dense area with multiple uses within a short distance of each other. The Mc Fadden Square area is conducive to a significant number of walk- in patrons. The area experiences parking shortages in the daytime during the summer months, but parking is typically available during the rest of the year. Two municipal parking lots and on-street parking is available in the area to accommodate the proposed use in the off-season months. 7. The Applicant provided a parking study for the Property in 2019 that was prepared by a qualified professional, RK Engineering Group, Inc. RK Engineering has provided an updated parking memorandum, dated June 9, 2023, which affirms that the 2019 study is valid since it was obtained during typical pre-pandemic operating conditions and the study area has not had any significant changes. With the proposed occupancy increase, the memorandum provides a conservative calculation of 260 cars during the peak demand time of 7 p.m., where there are 272 public parking spaces. The memorandum concludes that there is sufficient parking within the surrounding area to allow the increase in occupancy, especially with 87 percent of patrons utilizing alternative modes of transportation to arrive at the establishment. 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. Planning Commission Resolution No. PC2023-028 Page 8 of 19 01-17-23 Facts in Support of Finding: 1. The Property is developed with an existing commercial building and the tenant space is designed for an eating and drinking establishment. The design, size, location, and operating characteristics of the use are compatible with the surrounding neighborhood. The existing tenant space on the Property has historically been utilized by an eating and drinking establishment and a liquor store, which was replaced by the bar’s expansion in 2015. 2. The Project has been reviewed by the City’s Fire, Public Works, and Building Departments. Adequate public and emergency vehicle access, public services, and utilities are provided to the Property. Any additional utility upgrades required for the occupant load increase will be required at plan check and have been included in the conditions of approval attached in Exhibit “A”. 3. A building permit is required prior to any occupant load increase. Any tenant improvements to the Property will comply with all Building, Public Works, and Fire Codes. All ordinances of the City 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. Facts in Support of Finding: 1. The Project has been reviewed and includes conditions of approval to ensure that potential conflicts with the surrounding land uses are minimized to the greatest extent possible. The operator is required to take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, and areas surrounding the subject property and adjacent properties during business hours, if directly related to the patrons of the establishment. 2. The establishment will continue to provide dining and entertainment as a public convenience to the surrounding neighborhood and visitors to the area. This will continue to help revitalize the Property and provide an economic opportunity for the Property owner to update the building and surrounding area, which best serve the quality of life for the surrounding visitor- and local-serving community. 3. The Project use is located in a district which is subject to a captive market that results in shared trips, different peak periods for a variety of land uses, and a high level of pedestrian and bicycle activity. These characteristics reduce the demand of the expanded bar establishment and the number of parking spaces required to serve the proposed use. Adequate parking is provided in the nearby municipal lots in the off-season months and summer weekdays to accommodate the proposed use. Planning Commission Resolution No. PC2023-028 Page 9 of 19 01-17-23 4. The triangular outdoor patio area is open on only one side facing eastward towards Newport and West Balboa Boulevards and is delineated by a 6-foot-1-inch tall glass barrier to provide sound attenuation. The increased occupant load is not anticipated to increase noise, as the additional persons are calculated for inside the bar area. The occupant load of the outdoor dining area will not increase as part of the Project. Late-Hour Operations Pursuant to Section 20.48.090(G)(3)(a) (Late-Hour Operations) of the NBMC, the Planning Commission must consider the following potential impacts upon adjacent or nearby uses when reviewing an application to allow late-hour operations: Findings: G. In accordance with Section 20.52.020(F) (Use Permit, Required Findings) of the NBMC, the following findings and facts in support of such findings are set forth: i. Noise from music, dancing, and voices associated with allowed indoor or outdoor uses and activities; ii. High levels of lighting and illumination; iii. Increased pedestrian and vehicular traffic activity during late and early morning hours; iv. Increased trash and recycling collection activities. v. Occupancy loads of the use. vi. Any other factors that may affect adjacent or nearby uses. Facts in Support of Finding: 1. The Project includes a dance floor and live entertainment in the form of a DJ, solo performer, or small band. The Project has been conditioned so that exterior doors and windows are closed after 10 p.m., except for ingress and egress purposes. 2. While the closing time for the establishment is 2 a.m., the Project is conditioned with an “exit-only” policy at 1 a.m., which means that no new patrons are allowed to enter starting at 1 a.m. Additionally, a condition of approval is included to limit the last service for alcohol at 1:30 a.m. These constraints are intended to result in an earlier dispersion of patrons from the Property and reduce noise issues. 3. No new lighting is proposed on the building. There is existing and adequate outdoor lighting within the adjacent municipal parking lot located at the front of the establishment. 4. The existing establishment currently operates until 2 a.m. with a maximum of 260 occupants. The revised operation would increase the number of occupants to 290 persons, which may result in an increase of pedestrian and vehicular activity. Planning Commission Resolution No. PC2023-028 Page 10 of 19 01-17-23 According to the parking survey conducted by RK Engineering Group, Inc., 87 percent of the patrons utilize alternative modes of transportation to the Property, with a majority using rideshare services such as Uber or Lyft. With most of the patrons utilizing alternative modes of transportation, the increase of pedestrian and vehicular activity is not expected to increase significantly. 5. Fact in Support of Finding D.7 is hereby incorporated as reference. 6. A trash enclosure is not currently provided on-site due to limited space. However, the Applicant has an existing agreement with the adjoining property owner to utilize a shared trash area behind the Café Il Farro restaurant. As conditioned, the Applicant will be required to maintain the trash area such that odors are controlled appropriately. Should the existing trash area be determined by the City in the future to be inadequate, the Applicant will be required to increase the frequency of pickups. 7. The increase in occupancy from 260 to 290 persons is not expected to significantly increase trash and recycling collection activities. 8. The Applicant is proposing a maximum occupancy load of 290 persons, which is an increase from the current maximum of 260 persons. The City’s Building and Fire departments have reviewed this request and have approved the proposed project plans which includes the proposed maximum occupancy. 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: Finding: H. 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) of the NBMC. The Project includes an increase in maximum occupancy load from 260 to 290 persons, which requires an additional parking demand of 8 parking spaces. Therefore, the Project constitutes as development in the coastal zone and requires a coastal development permit. 2. The Project includes an existing bar, which is a nonconforming use in the MU-W2 coastal zoning district. The property has been used as a bar since the early 1900s. Per NBMC Section 21.38.050 (Nonconforming Uses), nonconforming uses may be expanded or intensified if such new development does not increase the degree of the use’s nonconformity. The Project does not include an expansion of floor area or exterior Planning Commission Resolution No. PC2023-028 Page 11 of 19 01-17-23 modifications. The Project does include an increase in the maximum occupancy load, which was previously conditioned to be 260 persons. However, the existing building is able to hold the proposed occupancy of 290 persons without significant alterations. 3. The Project does not include any physical expansion or exterior alteration to the Property. The Project includes new components such as live entertainment and dancing, which necessitates existing pool tables to be relocated and to use existing customer area for a dance floor. 4. With the addition of live entertainment and dancing, the use will remain primarily a bar, a use that is consistent with the existing pattern of development on the Balboa Peninsula. Additionally, the Project does not contain any unique features that could degrade the visual quality of the Coastal Zone. 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 the public to visit coastal areas and provides an added amenity for visitors. The Project does not contain ESHA, wetlands, or sandy beach area. 6. The Property is located approximately 400 feet from the Newport Pier, which is a designated public viewpoint in the Coastal Land Use Plan and offers public views of the beach and ocean. The Project is to increase the existing occupant load and include dancing and live entertainment, and does not include a physical expansion or alteration to the existing building. The Property will maintain the original building envelope, which is consistent with the existing Mc Fadden Square pattern of development. Therefore, the Project does not have the potential to degrade the visual quality of the Coastal Zone or result in significant adverse impacts on public views. Finding: I. 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 of any body of water located within the coastal zone. The Property is located adjacent to a lateral access to the coast (West Ocean Front board walk), as well as public beach access points on 22nd Street and the Newport Pier. The Project does not include physical alterations to the exterior or expansion in floor area which would obstruct existing access points the beach or pier. 2. The additional 8-parking-space demand generated by the increase of 30 occupants is not expected to interfere with visitors to the beach, as the Property is more frequently visited in the evening and early morning hours (until 2:00 a.m.). According to the Planning Commission Resolution No. PC2023-028 Page 12 of 19 01-17-23 provided parking survey, the peak times for visitors to the establishment are from 7:00 p.m. to midnight. Visitors coming to the beach typically come in the daytime when the establishment does not typically generate high traffic. 3. The addition of dancing and live entertainment at the establishment serve as an additional attraction for visitors to the city and encourage more activity in the pier area during evening hours. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach hereby finds the Project is categorically exempt from the California Environmental Quality Act under 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 Planning Commission of the City of Newport Beach hereby approves a conditional use permit and coastal development permit, subject to the conditions outlined 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 by the provisions of Title 20 (Planning and Zoning) and Title 21 (Local Coastal 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 of the City’s certified LCP and Title 14 California Code of Regulations, Sections 13111 through 13120, and Section 30603 of the Coastal Act. 4. This resolution supersedes UP2018-013 approved pursuant to Resolution No. PC2019- 018, which upon vesting of the rights authorized by this conditional use permit, coastal development permit, and operator license, shall become null and void. Planning Commission Resolution No. PC2023-028 Page 13 of 19 01-17-23 PASSED, APPROVED, AND ADOPTED THIS 3RD DAY OF AUGUST, 2023. AYES: Barto, Ellmore, Harris, Langford, Lowrey, Rosene, Salene NOES: None ABSTAIN: None ABSENT: None BY:_________________________ Curtis Ellmore, Chair BY:_________________________ Tristan Harris, Secretary DocuSign Envelope ID: A9E3C8BA-FB16-4266-8BED-EA19A22A43D3 Planning Commission Resolution No. PC2023-028 Page 14 of 19 01-17-23 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. A material violation of any of those laws in connection with the use may be caused the revocation of this Use Permit. 4. 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 NBMC. 5. This Use Permit and Coastal Development Permit may be modified or revoked by the Planning Commission should they determine that the proposed uses or conditions under which it 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 to constitute a public nuisance. 6. Any change in operational characteristics, expansion in the area, or other modification to the approved plans, shall require an amendment to this Use Permit and Coastal Development Permit or the processing of a new Use Permit and Coastal Development Permit. 7. A copy of the Resolution, including conditions of approval Exhibit “A” shall be incorporated into the Building Division and field sets of plans before issuance of the building permits. 8. The site shall not be excessively illuminated based on the luminance recommendations of the Illuminating Engineering Society of North America, or, 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. Planning Commission Resolution No. PC2023-028 Page 15 of 19 01-17-23 9. Before 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. 10. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. The maximum noise shall be limited to no more than depicted below for the specified periods unless the ambient noise level is higher: Between the hours of 7:00 AM and 10:00 PM Between the hours of 10:00 PM and 7:00 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 11. 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 leasing agent. 12. The hours of operation for the bar shall be limited to between 6 a.m. and 2 a.m., daily; however, no new patrons shall be allowed to enter the bar after 1 a.m. and last call for alcohol service shall occur at 1:30 a.m. The Applicant shall be responsible for encouraging patrons to vacate the premise in a timely manner. 13. Live entertainment shall be limited to between the hours of 11 a.m. and 2 a.m., daily, and all performances shall be located as indicated on the approved project floor plans. 14. Dancing shall be limited to between the hours of 5 p.m. and 2 a.m., daily. The dance floor shall be located as indicated on the approved project floor plans and shall not be relocated or expanded without an amendment to the conditional use permit and coastal development permit. 15. All doors and windows of the facility shall remain closed after 10 p.m. except for the ingress and egress of patrons and employees. 16. The occupant load for customers (not including employees) of the eating and drinking establishment shall not exceed 290 persons, including the outdoor patio area, subject to compliance with the California Building Code (“CBC”) and the approval of the Building Division. A building permit is required prior to any occupant load increase. 17. Construction activities shall comply with Section 10.28.040 of the Newport Beach Municipal Code, which restricts hours of noise-generating construction activities that produce noise to between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday, and 8:00 a.m. and 6:00 p.m. on Saturday. Noise-generating construction activities are not allowed on Saturdays, Sundays, or Holidays. Planning Commission Resolution No. PC2023-028 Page 16 of 19 01-17-23 18. That no outdoor sound system, loudspeakers, or paging system shall be permitted in conjunction with the facility. 19. The Applicant is responsible for washing the adjacent sidewalk area in front of the entire linear frontage of the building at an appropriate frequency to ensure it is kept clean. 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, 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, except for the required trash container enclosure. 23. 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. 24. To the fullest extent permitted by law, the Applicant shall indemnify, defend and hold harmless the City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any 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 Stag Bar Occupant Load Increase and Dancing including, but not limited to, a conditional use permit, coastal development permit, and operator license (PA2022-0249). 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 the Applicant, City, and/or the parties initiating or bringing the such proceeding. The Applicant shall indemnify the City for all the City's costs, attorneys' fees, and damages that which City incurs in enforcing the indemnification provisions outlined in this condition. The Applicant shall pay to the City upon demand any amount owed to the City under the indemnification requirements prescribed in this condition. Planning Commission Resolution No. PC2023-028 Page 17 of 19 01-17-23 Building Division 25. 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 before the issuance of a building permit. 26. 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 carpooling 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. 27. 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 stormwater away from potential sources of 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 Planning Commission Resolution No. PC2023-028 Page 18 of 19 01-17-23 identify the entity responsible for the long-term inspection, maintenance, and funding for all structural (and if applicable Treatment Control) BMPs. 28. Prior to implementing any increased occupant load, the Applicant shall apply for and obtain a building permit for the increase. 29. Immediately after building permit final, the Applicant shall ensure a new certificate of occupancy is issued and posted on-site in a conspicuous location. 30. Public sanitation facilities shall be available to the general public (patrons) during regular business hours of the operation, unless otherwise approved by the Building Division. 31. Portable propane heaters shall be prohibited on the outdoor patio. Natural gas or electric heaters are allowed if installed per their listing and the California Electrical or Plumbing Code. 32. The rear doors of the facility shall remain closed at all times. The use of the rear door shall be limited to deliveries and employee use only. Ingress and egress by patrons are prohibited unless there is an emergency. All exits shall remain free of obstructions and available for ingress and egress at all times. Police Department 33. The operator of the establishment shall secure and maintain an operator license pursuant to NBMC Chapter 5.25 (Operator License for Establishments Offering Alcoholic Beverages for On-Site Consumption with Late Hours, Entertainment, and/or Dance). 34. The Operator License required to be obtained pursuant to NBMC Chapter 5.25 may be subject to additional and/or more restrictive conditions such as a security plan to regulate and control potential late-hour nuisances associated with the operation of the establishment. 35. 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. 36. The operator of the facility shall be responsible for the control of noise generated by the subject facility including, but not limited to, noise generated by patrons, food service operations, and mechanical equipment. All noise generated by the proposed use shall comply with the provisions of NBMC Chapter 10.26 (Community Noise Control) and other applicable noise control requirements of the NBMC. Pre-recorded music may be played in the tenant space, provided exterior noise levels outlined below are not exceeded. The noise generated by the proposed use shall comply with the provisions of NBMC Chapter 10.26. Planning Commission Resolution No. PC2023-028 Page 19 of 19 01-17-23 37. 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 20 feet of the premises. 38. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee. 39. 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. 40. 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. 41. 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 program must be updated every three 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. 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. 42. Strict adherence to maximum occupancy limits is required. Security staff shall be posted at each entrance and must keep an accurate occupant load count. Security staff shall provide that count to City officials on command. 43. A revised comprehensive security plan that includes one additional security guard due to the increase in customer occupancy count for the eating establishment shall be submitted for review and approval by the NBPD. The procedures included in the security plan shall be implemented and adhered to for the life of the Conditional Use Permit. There shall be at least one security staff member on duty for every 50 patrons after 10 p.m. or while live entertainment and/or café dance is being conducted. There shall further be at least four security staff members on duty Friday and Saturday evenings after 10 p.m. or while live entertainment and/or café dance is being conducted. At least one security staff member shall be posted at each entrance. All security staff must possess a guard card and be trained in responsible beverage service. After 2 a.m. closing, there shall be at least two security staff members posted outside to deter any potential problems until the crowd has dispersed from the immediate area.