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HomeMy WebLinkAboutPA2023-0048_20231012_Resolution_ZA2023-061Community Development Department CITY OF NEWPORT BEACH 100 Civic Center Drive Newport Beach, California 92660 949 644-3200 newportbeachca.gov/communitydevelopment VIA EMAIL October 13, 2023 Palmieri Tyler Wiener Wilhelm & Waldron LLP c/o Michael Cho 1900 Main Street, Suite 700 Irvine, CA 92614 mcho@ptwww.com Subject: Minor Use Permit (PA2023-0048) 2301 San Joaquin Hills Road The Gallery at Roger’s Gardens Dear Mr. Cho, It was a pleasure working with you on the above referenced application. Please be advised that the subject application was approved by the Zoning Administrator on October 12, 2023 and effective on October 27, 2023. A copy of the approved resolution with findings and conditions is attached. If you have any questions, please do not hesitate to contact me directly. Thank you and I look forward to working with you again in the future. For additional information on filing an appeal or should you have any questions, please contact our office at 949-644-3200 or you may contact me directly at 949-644- 3312, jperez@newportbeachca.gov. Sincerely, LAW/jp cc: Gavin Herbert, Jr. GavinH@rogersgardens.com RESOLUTION NO. ZA2023-061 A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING A MINOR USE PERMIT TO ALLOW THE ADDITION OF A TYPE 20 (OFF-SALE BEER & WINE) AND TYPE 86 (INSTRUCTIONAL TASTING) ALCOHOLIC BEVERAGE CONTROL (ABC) LICENSE TO AN EXISTING RETAIL SHOP AT 2301 SAN JOAQUIN HILLS ROAD (PA2023-0048) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Gavin Herbert Jr., of Roger’s Gardens, with respect to property located at 2301 San Joaquin Hills Road, and legally described as Parcel 1 of Parcel Map 79-718, requesting approval of a Minor Use Permit. 2. The applicant requests a minor use permit to add a Type 20 (Off-Sale Beer & Wine) and a Type 86 (Instructional Tasting) Alcoholic Beverage Control (ABC) license to an existing retail shop (“The Gallery") at an existing plant nursery known as Roger’s Gardens. The ABC licenses would allow the Applicant to sell beer and wine for off-site consumption and offer tastings of beer and wine. There are no late hours (after 11:00 p.m.) proposed for the retail shop. No construction is proposed as both the retail sales and tastings will take place within existing facilities. In addition to the existing nursery and retail shop, the project site is also developed with a restaurant known as the Farmhouse. The Farmhouse is permitted to operate under Minor Use Permit No. UP2014-049 and carries its own established Type 47 (On-Sale General) ABC license, which regulates alcohol sales and consumption within the perimeter of the restaurant. The restaurant is operated separately, and no changes are proposed to the existing restaurant, nor UP2014-049. 3. The subject property is designated General Commercial (CG) by the General Plan Land Use Element and is located within the Commercial General (CG) Zoning District. 4. The subject property is not located within the coastal zone. 5. A public hearing was held on October 12, 2023, online via Zoom. A notice of the time, place, and purpose of the hearing was given in accordance with the Newport Beach Municipal Code (NBMC). 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) 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. Zoning Administrator Resolution No. ZA2023-061 Page 2 of 11 01-17-23 2. Class 1 consists of 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 proposed minor use permit would allow the existing retail shop to sell beer and wine. The occasional product tasting will be offered to customers that may otherwise be patronizing the business and is not considered an intensification of use. 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: a) The crime rate in the reporting district and adjacent reporting districts as compared to other areas in the City. a. The subject property is in an area the Newport Beach Police Department (NBPD) designates as Reporting District (RD) 47. RD 47 is bounded to the north by San Joaquin Hills Road, to the east by Marguerite Avenue, to the south by 5th Avenue and to the west by MacArthur Boulevard. Surrounding RD’s include RD 53 to the north, RD 48 to the east, RD 44 to the south, and RD 39 to the west. RD 47 is primarily residential in use however, at the intersection of San Miguel Drive and San Joaquin Hills Road, there are commercial uses including the Harbor View Shopping Center and the subject property. b. 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 most serious crimes defined by the FBI Uniform Crime Report: criminal homicide, rape, robbery, aggravated assault, burglary, larceny-theft, auto theft, and arson. RD 47 is not considered or reported to ABC as a higher crime area, as compared to other RDs within the City. The RD 47 Part One Crime count for 2022 is 89, which is twelve (12) percent under the citywide average of 101 crimes per RD. c. The NBPD has reviewed the project and has no objection to the new Type 20 and 86 ABC licenses, subject to appropriate conditions of approval which have been incorporated into Zoning Administrator Resolution No. ZA2023-061 Page 3 of 11 01-17-23 Exhibit “A” of this Resolution. These conditions include provisions such as the requirement that 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 of the store from operating as a bar, tavern, cocktail lounge or nightclub, and the requirement that any substantial operational change require a subsequent review. b) The number of alcohol-related calls for service, crimes, or arrests in the reporting district and in adjacent reporting districts. a. In 2022, RD 47 had a higher percentage of alcohol-related crimes than neighboring RD 53 but had a lower percentage of alcohol related crime than both neighboring RD 39 and RD 44. The higher number of alcohol-related crimes in the subject RD compared to RD 53 is expected given that RD 53 is mostly residential, along with two schools, and lacks a substantial concentration of commercial uses. RD 39, which includes Fashion Island, and RD 44, which includes the commercial corridor of Corona del Mar, had alcohol-related crimes 562 percent higher and 279 percent higher, respectively, than the Citywide average. Therefore, RD 47 does not exhibit a higher number of alcohol related calls for services, crimes, or arrests than two of the three adjacent RDs. c) 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 project site is located within 200 feet of both Civic Center Park and the Baywood Apartment complex, approximately 360 feet from St. Mark Presbyterian Church and pre-school, and 1,000 feet from Lincoln Elementary school. While minors are expected to be present in the area, the retail shop intends to sell wine by the bottle to complement their gourmet food and gift basket offerings. The instructional tastings are limited to individuals at least 21 years of age. Neither activity includes characteristics that are anticipated to attract minors. d) The proximity to other establishments selling alcoholic beverages for either off-site or on- site consumption. a. In addition to the nursey and retail shop, the project site is developed with a restaurant known as the Farmhouse. The Farmhouse holds a Type 47 (On-Sale General) ABC license. The Farmhouse operates pursuant to Minor Use Permit No. UP2014-049 and has conditions of approval regulating the on-site consumption of alcohol within the restaurant. b. In the adjacent Harbor View Shopping Center, Fresh Brothers holds a Type 41 (On-Sale Beer and Wine – Eating Place). Rite Aid holds a Type 20 (Off-Sale Beer and Wine) ABC License and Gelson’s Supermarket holds several licenses, including a Type 21 (Off- Sale General), Type 41 (On-Sale Beer and Wine – Eating Place), Type 42 (On-Sale Beer and Wine – Public Premises), Type 58 (Caterer Permit), and a Type 86 (Instructional Tasting License). Zoning Administrator Resolution No. ZA2023-061 Page 4 of 11 01-17-23 c. Both Fashion Island and the commercial corridor of Corona del Mar have a considerable number of on-sale and off-sale ABC licenses. They are not however within the immediate vicinity of the project site. Fashion Island is the closer commercial area and is approximately 1,500 feet away from the project site. Minor Use Permit In accordance with Section 20.52.020(F) (Findings and Decision) of the NBMC, the following findings and facts in support of such findings for a use permit are set forth: Facts in Support of Finding: 1. The Land Use Element of the General Plan categorizes the project site as General Commercial (CG). The CG category is intended to provide for a wide variety of commercial activities oriented primarily to serve citywide or regional needs. Alcohol sales within an existing retail shop is a use is consistent with the intent of the CG category and would expand the existing offerings at Roger’s Gardens. The instructional tastings are accessory to the retail sale of alcohol. 2. General Plan Land Use Policy LU 5.2.2 (Buffering Residential Areas) requires that commercial uses adjoining residential neighborhoods be designed to be compatible and minimize impacts. While Roger’s Gardens adjoins the Harbor Pointe residential neighborhood to the southwest, the retail shop is separated from the neighborhood by over 100 feet of parking lot and a masonry wall. There is also a landscape buffer on the residential side of the wall that provides additional buffer to the commercial use. 3. The subject property is not located within a Specific Plan area. Finding: B. 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. The project site is zoned Commercial General (CG). The CG district is intended to implement the CG General Plan land use category by providing for areas appropriate for a wide variety of commercial activities oriented primarily to serve Citywide or regional needs. 2. Table 2-4, Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) specifies that retail uses with off-sale alcohol are allowed in the CG District subject to the approval of a MUP. 3. The 6.47-acre site is currently developed with Roger’s Gardens. The site contains a plant nursery with a combination of outdoor and indoor display and areas, a retail shop, and a restaurant. Roger’s Gardens has been in business at this location for more than Zoning Administrator Resolution No. ZA2023-061 Page 5 of 11 01-17-23 50 years and provides services to the local and regional community. The subject property currently provides 201 parking spaces for all on-site uses, where 171 parking spaces are required. While the addition of alcohol sales and limited educational tastings is not likely to increase demand for parking, there is a surplus of parking available that will adequately serve customers. Finding: C. 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 vicinity is diverse with a mix of residential, commercial, public facilities, and private institutional uses. The Roger’s Garden site experiences considerable visitor traffic both by vehicles and pedestrians and is busy and vibrant. The retail shop will likely serve patrons already visiting the site and the addition of alcohol sales and tastings is not anticipated to generate noticeable change in traffic or congestion. 2. The nearest retail store, Rite Aid, with an off-sale ABC license is located across San Joaquin Hills Road, approximately 200 feet to the east of the subject property. There is also a Gelson’s supermarket in the same shopping center as the Rite Aid. The alcohol sales proposed for the retail shop are very limited compared to both Rite Aid and Gelson’s as the beer and wine is intended to be paired with gift baskets. The primary function of the retail shop will still be to provide a selection of both indoor and outdoor furniture, home décor, gourmet food, women’s accessories, and housewares. 3. The instructional tastings will be conducted in an area of the retail shop that displays art available for purchase. While the project does introduce minimal on-site consumption of alcohol with the Type 86 license, the Type 86 license is heavily conditioned by ABC. Limits include the amount of alcohol that can be sampled per person per day, the location where the alcohol may be sampled, and the prohibition of charging a fee for an instructional tasting. The project is conditioned to restrict on-site tasting to a maximum of 6 times per month, which will ensure that the proposed tastings remain an ancillary use to the retail shop. The limits placed on the Type 86 license by ABC should help prevent any potential negative impacts on surrounding uses. Finding: D. 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. Fact in Support of Finding: The project site was reviewed for public and emergency vehicle access, public services, and utilities as part of the approval of Minor Use Permit No. UP2014-049. The Zoning Administrator Resolution No. ZA2023-061 Page 6 of 11 01-17-23 site was deemed adequate at that time and there have been no subsequent additions or intensification of use at the site. Further, no construction is proposed at the site to accommodate the new ABC License types. The addition of alcohol sales and instructional tasting within an existing retail shop will not negatively affect emergency access or have a noticeable impact on the site. Finding: E. 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 addition of alcohol sales and instructional tastings in an existing retail shop should have few-to-no noticeable changes to the overall operation of the Roger’s Gardens site. Customers who purchase beer and wine or participate in the instructional tastings are likely to already be onsite. 2. Fact 1 in Support of Finding C incorporated by reference. Finding: F. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. 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 related to the sale of alcohol and related tastings. 2. The Police Department has reviewed the project and has no objection to the operation as described by the applicant. The Police Department believes that with the conditions of approval, the proposed project will not have a negative impact on the community and police services. 3. Compliance with the NBMC standards related to noise, lighting, and signage will help ensure that the proposed use will be compatible with the surrounding area. Zoning Administrator Resolution No. ZA2023-061 Page 7 of 11 01-17-23 SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Zoning Administrator of the City of Newport Beach hereby finds this project is categorically exempt from the California Environmental Quality Act pursuant to Section 15301 under Class 1 (Existing Facilities) 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 the Minor Use Permit, 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 NBMC. PASSED, APPROVED, AND ADOPTED THIS 12TH DAY OF OCTOBER 2023. Zoning Administrator Resolution No. ZA2023-061 Page 8 of 11 01-17-23 EXHIBIT “A” CONDITIONS OF APPROVAL Planning Division 1. The sale of beer and wine and the location of instructional tastings shall be in substantial conformance with the approved site plan and floor plan 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. All proposed signs shall be in conformance with the approved Comprehensive Sign Program for the project site and provisions of Chapter 20.42 (Signs) of the Newport Beach Municipal Code. 5. This Use Permit shall expire unless exercised within 24 months from the date of approval as specified in Section 20.54.060 (Time Limits and Extensions) of the NBMC unless an extension is otherwise granted. 6. This MUP may be modified or revoked by Zoning Administrator if determined that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 7. The hours of operation for the retail shop shall not extend beyond 11 p.m. 8. The Applicant is allowed up to six (6) instructional tastings per month. 9. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require subsequent review by the Planning Division and potential amendment of this MUP. 10. 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. 11. All noise generated by the proposed use shall comply with the provisions of Chapter Zoning Administrator Resolution No. ZA2023-061 Page 9 of 11 01-17-23 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 12. 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. 13. No outside paging system shall be utilized in conjunction with this establishment. 14. 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. 15. 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. 16. The exterior of the business shall be always maintained free of litter and graffiti. 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. 17. 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). 18. 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. 19. 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. Zoning Administrator Resolution No. ZA2023-061 Page 10 of 11 01-17-23 20. 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 NBMC to require such permits. 21. 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. 22. 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 The Gallery at Roger’s Gardens including, but not limited to, PA2023-0048. 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 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. Police Department 23. The ABC License shall be limited to a Type 86 (Instructional Tasting) and a Type 20 (Off- Sale Beer and Wine). Any substantial change to the ABC license type shall require subsequent review and potential amendment of the MUP. 24. The Applicant shall abide by all requirements and 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 MUP. 25. All owners, managers and employees selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible beverage service within 60 days of hire. The certified program must meet the standards of the State of California. Records of each owner’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. 26. Approval does not permit the premises to operate as a bar, tavern, cocktail lounge, or nightclub as defined by the NBMC. Zoning Administrator Resolution No. ZA2023-061 Page 11 of 11 01-17-23 27. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under control of the licensee. 28. No games or contests requiring or involving the consumption of alcoholic beverages shall be allowed.