HomeMy WebLinkAboutZA2024-035 - APPROVING A MINOR USE PERMIT FOR A TAKE-OUT SERVICE—FAST CASUAL EATING AND DRINKING ESTABLISHMENT LOCATED AT 304 MARINE AVENUE, UNIT B (PA2024-0062)RESOLUTION NO. ZA2024-035
A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE
CITY OF NEWPORT BEACH, CALIFORNIA APPROVING A
MINOR USE PERMIT FOR A TAKE-OUT SERVICE—FAST
CASUAL EATING AND DRINKING ESTABLISHMENT LOCATED
AT 304 MARINE AVENUE, UNIT B (PA2024-0062)
THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Rey Maninang (Applicant) concerning property located at 304
Marine Avenue, Unit B, and legally described as Lot 3 of Section 4 of the Balboa Island
Tract (Property), requesting approval of a minor use permit.
2. The Applicant proposes a gelato establishment (take-out service—fast casual) within an
existing 767-square-foot commercial suite. The applicant is proposing minor
modifications to the façade and interior of the suite. The sale of alcohol and late-hour
operations (after 11:00 p.m.) are not proposed (Project).
3. The Property is located within the Mixed-Use Water (MU-W2) Zoning District and
categorized as Mixed-Use Water 2 (MU-W2) by the General Plan Land Use Element. The
MU-W2 zone is intended to apply to waterfront locations in which marine-related uses may
be intermixed with general commercial, visitor-serving commercial and residential dwelling
units on the upper floors.
4. The Property is located within the coastal zone, within the Mixed-Use Water (MU-W2)
Coastal Zoning District and the Mixed-Use Water Related (MU-W) Coastal Land Use
category. The MU-W2 Coastal Zoning District 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. The Project does not result
in an increase in parking intensity of the existing use; therefore, a coastal development
permit (CDP) is not required for the Project.
5. On May 9, 2023, the City Council approved Ordinance No. 2023-6, amending Title 20
(Planning and Zoning) of the Newport Beach Municipal Code (NBMC) related to
commercial parking. As a part of the ordinance, the land use category formerly known as
“Take-Out Service, Limited”, which allowed for establishments that sells food or beverages
primarily for off-site consumption and up to a maximum of six seats, was eliminated and
replaced with the land use category “Take-Out Service – Fast Casual,” which is similar to
“Take-Out Service, Limited,” except that it allows for a maximum of 20 seats instead of six.
The City Council also simultaneously approved Resolution No. 2023-27, authorizing the
submittal of the commercial parking amendment of Title 21 (Local Coastal Program
Implementation Plan) to the California Coastal Commission. The amendment to Title 21 is
currently under review by the Coastal Commission. Since a minor use permit is required
by Title 20, the Project is categorized as a Take-Out Service – Fast Casual use. However,
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since it is located in the coastal zone where the parking amendment is not yet effective,
the Project is regulated as the former Take-Out Service, Limited use. Therefore, the Project
is limited to a maximum of six seats, unless otherwise amended by the California Coastal
Commission.
6. A public hearing was held on June 13, 2024, 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.
2. The Class 1 exemption authorizes minor alterations of existing structures involving
negligible or no expansion of use. The Project is a gelato shop that involves alterations to
the interior floor plan of an existing commercial space with no expansion in floor area.
Therefore, the Class 1 exemption is applicable.
SECTION 3. REQUIRED FINDINGS.
In accordance with Section 20.52.020 (Conditional Use Permits and Minor Use Permits) of the
Newport Beach Municipal Code (NBMC), the following findings and facts in support of such
findings are set forth:
Finding:
A. 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 this Property as Mixed-Use
Water (MU-W2) which is intended to apply to waterfront locations in which marine-related
uses may be intermixed with general commercial, visitor-serving commercial, and
residential dwelling units on the upper floors. The Project is a take-out gelato shop which
is a visitor-serving commercial use on Marine Avenue of Balboa Island, which is
surrounded by similar and complementary uses such as residential and commercial
uses including retail sales, eating, and drinking establishment, and offices.
2. The Property is not part of a specific plan area.
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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 Property is located within the MU-W2 Zoning District. Table 2-9 of NBMC Section
20.22.020 (Mixed-Use Zoning Districts Land Uses and Permit Requirements) allows
take-out service—fast casual eating, and drinking establishment use subject to approval
of a minor use permit if within 100 feet of a residential zoning district. A take-out
service—fast casual use is defined as an establishment that sells food or beverages,
with the exception of alcohol, primarily for off-site consumption, where customers order
and pay for food at either a counter or service window and up to a maximum of up to 20
seats including seats in interior areas and seats in outdoor dining areas are provided for
on-site consumption of food or beverages. As discussed in Statement of Fact No. 5
above, the Project is limited to a maximum of six seats unless otherwise amended by
the Coastal Commission.
2. The Property has legal, nonconforming parking due to having only three available
parking spaces on site. NBMC Section 20.40.040 (Off-Street Parking Spaces Required)
requires an off-street parking rate of one space per 250 square feet of gross floor area
for a take-out service – fast casual use. The Project is in a vacant tenant space that was
previously occupied by a retail use which has the same parking requirement. Pursuant
to NBMC Section 21.38.060 (Nonconforming Parking) a use with nonconforming parking
may be changed to a new use allowed in that coastal zoning district without providing
additional parking, no intensification or enlargement (e.g., increase in floor area, or lot
area), and the new use requires a parking rate of no more than one space per 250
square feet of gross building area. The Project has an identical parking rate and does
not increase in gross floor area; therefore, no additional parking is required.
3. As conditioned, the Project will comply with NBMC Section 20.48.090 (Eating and
Drinking Establishments) which specifies standards for eating and drinking
establishments. Additionally, the Project will be conditioned to provide a maximum of six
seats for use by patrons as required for the former take-out service, limited use unless
otherwise amended by the California Coastal Commission.
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 Project is compatible with the existing and allowed uses in the area, which consist
of residential and commercial uses including retail sales, eating and drinking
establishment, and offices. The Property is located among other commercial uses along
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Marine Avenue with residential uses located directly across the alley behind the
Property.
2. The Project includes an interior remodel and alteration of a 767-square-foot commercial
suite with approximately 357 square feet proposed as customer serving area. The size
of the commercial suite will not increase as part of this Project.
3. The Project will be conditioned to provide adequate trash storage facilities in an
enclosed area pursuant to NBMC Section 20.30.120 (Solid Waste and Recyclable
Materials Storage), thereby preventing any odor or related issues for the adjacent
properties.
4. Fact support of Finding B.2 is hereby incorporated as reference.
5. As conditioned, the hours of operation are from 10:00 a.m. to 10:00 p.m. Sunday to
Thursday and 10:00 a.m. to 11:00 p.m. on Friday, Saturday, and holidays. These hours
of operation will minimize any disturbance to residences near the property.
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.
Facts in Support of Finding:
1. The Property is 2,250 square feet in area, rectangular in shape, and located in a
commercial area with residential uses to the east across the rear alley. The Property
has street access along Marine Avenue and alley access at the rear of the Property.
Pedestrian access is available at the front of the Property along Marine Avenue.
2. The Fire Department reviewed the Project to ensure adequate public and emergency
vehicle access is provided.
3. The Public Works Department, Building Division, and Fire Department have reviewed
the application. The Project is required to obtain all applicable permits from the City
Building and Fire Departments and must comply with the most recent, City-adopted
version of the California Building Code.
Finding:
E. 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.
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Facts in Support of Finding:
1. The Project will add an additional take-out dessert option to Marine Avenue and occupy
a commercial suite that is currently vacant.
2. The Project includes limited hours, no alcohol service, and is limited to a maximum of
six indoor seats, unless the previously discussed parking amendment is approved by
the Coastal Commission. The Project meets the parking requirement pursuant to NBMC
Section 21.38.060 (Nonconforming Parking) and there is not anticipated to be a
significant impact or increase in demand for on-street parking in this area as a result of
this Project.
3. Fact support of Finding C.3 is hereby incorporated as reference.
4. 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 Property and adjacent properties during business hours, if directly
related to the patrons of the establishment. Based on the NBMC requirements and the
proposed conditions of approval, the Project will not result in a detriment to the
surrounding community.
5. The Applicant is required to obtain Health Department approval prior to opening for
business, and to comply with the California Building Code to ensure the safety and
welfare of customers and employees within the establishment.
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 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 Zoning Administrator of the City of Newport Beach hereby approves Minor Use Permit
PA2024-0062, 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 a 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 (NBMC).
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PASSED, APPROVED, AND ADOPTED THIS 13TH DAY OF JUNE 2024.
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EXHIBIT “A”
CONDITIONS OF APPROVAL
(Project-specific conditions are in italics)
Planning Division
1. The Project 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 cause the revocation of this Minor Use
Permit.
4. All proposed signs shall be in conformance with provisions of Chapter 20.42 (Sign
Standards) of the Newport Beach Municipal Code and any future approved
Comprehensive Sign Program.
5. This Use Permit may be modified or revoked by the Zoning Administrator if determined
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 review by the Planning Division. An amendment to
this Use Permit or the processing of a new Minor Use Permit may be required.
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 screening of roof-mounted and ground-mounted mechanical equipment shall be
required in all zoning districts at the time of new installation or replacement in
conformance with Newport Beach Municipal Code Section 20.30.020 (Buffering and
Screening).
9. The Property 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.
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The Director of Community Development may order the dimming of light sources or
other remediation upon finding that the Property is excessively illuminated.
10. 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.
11. All noise generated by the proposed use shall comply with the provisions of Chapter
10.26 (Community Noise Control) 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 40dBA 50dBA
Residential Portions of Mixed-Use
Property 45dBA 60dBA 40dBA 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. Construction activities shall comply with Section 10.28.040 (Construction Activity –
Noise Regulations) 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. Noise-generating construction activities are
not allowed on Saturdays, Sundays, or Federal Holidays.
14. No outside paging system shall be utilized in conjunction with this establishment.
15. 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.
16. 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).
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17. The Property 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.
18. 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.
19. 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.
20. 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 Minor Use
Permit.
21. 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, include any form of on-site media broadcast, or any other activities
as specified in the Newport Beach Municipal Code to require such permits.
22. 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 Newport Beach Municipal Code Section 20.54.060 (Time
Limits and Extensions).
23. The allowed hours of operation for this establishment shall be limited to the hours of 10:00
a.m. to 10:00 p.m. Sunday to Thursday and 10:00 a.m. to 11:00 p.m. on Friday,
Saturday, and Federal Holidays.
24. The sale, service, or consumption of alcohol shall not be permitted.
25. A maximum of six interior seats shall be allowed for the Project, unless the City’s Local
Coastal Program Implementation Plan amendment is approved by the California Coastal
Commission to allow a different number of interior seats for take-out service– fast casual
uses.
26. Employees of the restaurant shall not use the alley as a break area or smoking area.
27. Drop-off and pick-up of employes shall be prohibited in the alley.
28. 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
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or indirectly) to City’s approval of Gelatissimo Gelato including, but not limited to, Minor
Use Permit (PA2024-0062). 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.
Building Division
29. An accessible path of travel from parking and public right of way to the tenant space
shall be required. Non-compliant items shall be brought to compliance.
30. The Applicant shall note on that plans that there is existing non-compliant parking on
the rear of the Property.
31. Recessed doors maneuvering clearances for forward approach shall be provided when
any obstruction within 18” of the latch side at an interior doorway, or within 24” of the
latch side of an exterior doorway, projects more than 8” beyond the face of the door,
measured perpendicular to the face of the door or gate. (11B-404.2.4.3 & Figure 11B-
404.2.4.3 (a)).
32. The Applicant shall provide a clear space of 12” past the strike edge of the door on the
opposite side to which the door swings if the door is equipped with both a latch and a
closer. (Figure 11B-404.2.4.1(c)). The door shall not swing outside of the property line.
The maneuvering clearances at doors shall not have changes in level (except at
thresholds), slopes exceeding 1:48
33. The Applicant shall provide a plumbing fixture analysis on the plans. The applicant shall
verify that the number of plumbing fixtures provided complies with CPC Table 422.1.
Use chapter 4, Table A for occupant load factor & see footnote # 3 for female required
fixtures. The total occupant load shall be determined in accordance with CBC or CPC
Table 4-1 Occupant load factor. The applicant shall provide a summary of the number
of required fixtures and the number of provided fixtures on the on the title sheet of the
plans.
Public Works Department
34. A new sewer cleanout shall be installed on the existing sewer lateral per City Standard
406.