HomeMy WebLinkAboutPC2024-018 - UPHOLDING THE ZONING ADMINISTRATOR’S DENIAL OF A MINOR USE PERMIT FOR A TYPE 20 (OFF-SALE BEER & WINE) ALCOHOLIC BEVERAGE CONTROL (ABC) LICENSE FOR AN EXISTING TOBACCO RETAIL STORE LOCATED AT 2233 WEST BALBOA BOULEVARD (PA2023-0032)RESOLUTION NO. PC2024-018
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF NEWPORT BEACH UPHOLDING THE ZONING
ADMINISTRATOR’S DENIAL OF A MINOR USE PERMIT FOR A
TYPE 20 (OFF-SALE BEER & WINE) ALCOHOLIC BEVERAGE
CONTROL (ABC) LICENSE FOR AN EXISTING TOBACCO
RETAIL STORE LOCATED AT 2233 WEST BALBOA
BOULEVARD (PA2023-0032)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Glocal 4T INC. dba Tanar’s Tobacco (“Applicant”), with respect
to property located at 2233 West Balboa Boulevard, and legally described as Parcel 1 of
Parcel Map No. 2007-146 (“Property”).
2. The Applicant requests a minor use permit to allow a Type 20 (Off-Sale Beer & Wine)
Alcoholic Beverage Control (“ABC”) license at an existing tobacco retail store. The Type
20 (Off-Sale Beer & Wine) ABC license would allow the existing retail business to sell beer
and wine for off-site consumption. No other changes to the operation are requested and
no construction is proposed. No on-site consumption of alcohol is proposed as part of the
project (“Project”).
3. The Property is categorized as Mixed-Use Water 2 (MU-W2) by the General Plan Land
Use Element and is located within the Mixed-Use Water 2 (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 Zone District. The Project does not represent an intensification of use from the
existing tobacco shop (i.e. retail use) and is not considered “development;” therefore, a
coastal development permit is not required.
5. A public hearing before the Zoning Administrator was held on May 30, 2024. A notice of
the time, place, and purpose of the hearing was given in accordance with California
Government Code Section 54950 et seq. (“Ralph M. Brown Act”) and Chapters 20.62
(Public Hearings) of the Newport Beach Municipal Code (“NBMC”). Evidence, both
written and oral, was presented to, and considered by, the Zoning Administrator at this
hearing.
6. The Zoning Administrator adopted Resolution No. ZA2024-033 denying PA2023-0032
to allow a minor use permit for a Type 20 (Off-Sale Beer & Wine) ABC License.
7. On June 11, 2024, the Applicant filed a timely appeal of the Zoning Administrator’s
decision citing six factors: misinterpretation of crime statistics, overemphasis on
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saturation of ABC licenses, inconsistency with similar approvals, community support,
limited availability of off-sale licenses, and mitigating measures to address concerns.
8. A public hearing was held by the Planning Commission on August 22, 2024, in the City
Council Chambers at 100 Civic Center Drive, Newport Beach, California. A notice of time,
place and purpose of the public hearing was given in accordance with the Ralph M. Brown
Act and Chapter 20.62 (Public Hearings) of the NBMC. Evidence, both written and oral,
was presented to, and considered by, the Planning Commission at this public hearing.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
A project which a public agency rejects or disapproves is statutorily exempt and not subject to
review under the California Environmental Quality Act (“CEQA”) pursuant to Article 18, Section
15270 (Projects Which Are Disapproved) of the California Code of Regulations, Title 14,
Division 6, Chapter 3 (“CEQA Guidelines”).
SECTION 3. REQUIRED FINDINGS.
In reviewing a request for a minor use permit for an establishment to obtain an ABC license,
the review authority must make the findings in Section 20.52.020 (F) (Conditional Use Permits
and Minor Use Permits – Findings and Decision) and Section 20.48.030(C)(3) (Alcohol Sales
– Required Findings) of the NBMC. In this case, the Planning Commission’s decision shall be
based on consideration of the following findings, all of which are required for an approval:
Minor Use Permit
Findings:
1. The use is consistent with the General Plan and any applicable specific plan;
2. The use is allowed within the applicable zoning district and complies with all other
applicable provisions of this Zoning Code and the Municipal Code;
3. The design, location, size, and operating characteristics of the use are compatible with
the allowed uses in the vicinity;
4. 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; and
5. 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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Alcohol Sales
6. The use is consistent with the purpose and intent of Section 20.48.030 (Alcohol Sales)
of the Zoning Code;
i. The crime rate in the reporting district and adjacent reporting districts as
compared to other areas in the City.
ii. The number of alcohol-related calls for service, crimes, or arrests in the reporting
district and in adjacent reporting districts.
iii. The proximity of the establishment to residential zoning districts, day care
centers, hospitals, park and recreation facilities, place of worship, schools, other
similar uses, and any uses that attract minors.
iv. The proximity to other establishments selling alcoholic beverages for either off-
site or on-site consumption.
v. Whether or not the proposed amendment will resolve any current objectionable
conditions.
Facts in Support of Findings:
In considering the above required findings, specifically whether the Type 20 (Off-Sale Beer &
Wine) ABC license is compatible with the allowed uses in the vicinity and whether the Project
is consistent with the purpose and intent of Section 20.48.030 (Alcohol Sales) of the NBMC,
the Planning Commission is unable to make all required findings to approve the Project. The
Planning Commission’s decision is based on the following facts:
1. The Property is located on the peninsula within the McFadden Square area in the Mixed-
Use Water 2 (MU-W2) Zoning District of the NBMC and is designated MU-W2 in the
Land Use Element of the General Plan. This area is developed with mixed-used
development with surrounding land uses that include eating and drinking
establishments, visitor serving retail and accommodations, and residential uses. The
Property has an existing retail business that is located within a small shopping center
developed with several commercial uses including a tattoo shop, a bicycle rental shop,
and restaurants. The area is a popular location for both residents and visitors to the city
within 270 feet from the public beach and in close proximity to the Newport Pier.
2. In making the findings for alcohol sales pursuant to Section 20.48.030 (Alcohol Sales)
of the NBMC, the Newport Beach Police Department (“NBPD”) provides statistics
related to crime rates, proximity to residential zoning districts and other uses that attract
minors, and proximity to other establishments selling alcoholic beverages. The NBPD
reviewed the Project on October 10, 2023, and does not support the request due to the
high crime rate and concentration of existing ABC licenses in this area.
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3. Per the Applicant’s request, the NBPD reviewed the Project again on May 14, 2024, to
reevaluate the business after they made significant positive changes. For example,
during the Applicant’s ABC Licensing process, ABC Agents discovered the Applicant
was selling items considered to be drug paraphernalia under Section 24200.6
(Suspension and Revocation of Licenses) of the California Business & Profession Code.
However, during a recent site visit, the business was compliant with all laws and all drug
paraphernalia had been removed. Although the Applicant addressed certain
objectionable conditions of the business, the NBPD continues to oppose the Project due
to the location’s concentration of on-sale and off-sale alcohol licenses and the type of
ABC License being requested.
4. The Property is located in the NBPD Reporting District 15 (RD 15), which is the highest
crime area in Newport Beach with significant quality of life concerns for the residents,
as well as the Police Department. The NBPD is required to report offenses of criminal
homicide, forcible rape, robbery, aggravated assault, burglary, larceny, theft, and motor
vehicle theft, combined with all arrests for other crimes, both felonies and misdemeanors
(except traffic citations) to ABC. RD 15’s ABC crime count is 914, which is 675% over
the citywide average crime count of 118. When an area has at least a 20% greater
number of reported crimes than the citywide average number of reported crimes, the
area is found to have an undue concentration of criminal activity. In comparison, nearby
RD 13 is 226% above the citywide average, RD 16 is 94% above, and RD 25 is 111%
above.
5. The Property is located within census tract 0635.00 which has five Type 20 (Off-Sale
Beer & Wine) ABC licenses and a per capita ratio of one off-sale license for every 823
residents. Per the California Business and Professions Code, this ratio must be
compared to the per capita ratio of Orange County of one off-sale license for every 1,730
residents. Since the area’s ratio exceeds the ratio of retail licenses to population in the
county, the area is deemed to have an undue concentration of off-sale alcohol licenses.
6. The Applicant stated that the denial is inconsistent with approvals of similar licenses in
the City. Conversely, the NBPD has consistently recommended a decrease in the
number of off-sale alcohol licenses within RD 15, especially within this area of RD 15
(i.e. McFadden Square). The City has historically approved requests in the area for on-
sale licenses, typically in conjunction with eating and drinking establishments such as
restaurants, that do not allow for patrons to take alcoholic beverages off the premises
and onto the beach or surrounding areas. However, the City has not approved any new
off-sale licenses within RD 15 since 2021 for a retail wine shop on a property that is
approximately 1,400 feet from the public beach separated by Newport Boulevard,
Balboa Boulevard, and several blocks of residential and mixed-use development.
Additionally, in 2022, this off-sale license was removed and replaced with a Type 41
(On-Sale Beer & Wine – Eating Place) and Type 58 (Caterer’s Permit) ABC License for
a restaurant in place of the retail wine shop. This effort to limit off-sale licenses thereby
reduces opportunities for alcohol to be purchased and consumed on the public beaches
and other public areas on the peninsula.
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7. The Applicant stated that there are only five off-sale ABC licenses in the subject census
tract. However, two of the off-sale licenses belong to national retail chains and one to
an online-only store. One of these retail chains is Pavilions, which sells alcohol as an
accessory sale use which is permitted when the display area for alcoholic beverages
does not exceed 30% of the net floor area. The other retail chain is 7-Eleven which has
held an existing Type 20 (Off-Sale Beer & Wine) ABC licenses since 1988, and any
upgrades to this ABC License will require approval of a minor use permit. Four of the
five off-sale licenses noted by the Applicant were issued between 1984 and 1992 which
further points to the trend of the NBPD preventing new off-sale ABC licenses within this
census tract. The fifth off-sale ABC license was issued in 2020 to a business that
operates online with a wholesaler’s license and does not require a use permit to operate.
This business does not directly contribute to the ability and opportunity to purchase
alcoholic beverages and consume it on public beaches or other public areas on the
peninsula.
8. There are only five existing off-sale ABC licenses in the subject census tract. As
previously stated in Fact in Support of Finding No. 6, although there has been a
decrease of one off-sale ABC license, this does not create a precedent for a new off-
sale ABC license to take its place as the NBPD continues to make efforts to prevent new
(and reduce existing) off-sale licenses within this area.
9. The Project would increase the burden on police resources and exacerbate current
quality of life challenges for residents, visitors, and businesses, and would generate
additional public safety concerns in RD 15.
10. Due to the type of ABC license requested and the concentration of existing ABC
Licenses in the subject census tract, the NBPD would be required by the ABC to submit
a determination of Public Convenience or Necessity (“PCN”) to demonstrate that the
business operation will provide a benefit to the surrounding community. Approval of a
minor use permit would indicate that the City deems this business as a benefit to the
community and, therefore, serves as a PCN.
11. The Property is adjacent to residential uses across 23rd Street and the West Oceanfront
alley. Additionally, the Property is located approximately 270 feet from the beach. Due
to the adjacent residential developments, proximity to the beach, and over concentration
of off-sale alcohol licenses in the area, the request to add a Type 20 (Off-Sale Beer &
Wine) ABC license to the tobacco store would be detrimental to the harmonious and
orderly growth of the City, and would 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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SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Planning Commission of the City of Newport Beach hereby finds this Project is
statutorily exempt from CEQA pursuant to Section 15270 of the CEQA Guidelines because
the Project has been denied.
2. The Planning Commission of the City of Newport Beach hereby upholds and affirms the
Zoning Administrator’s denial of a Minor Use Permit filed as PA2023-0032.
3. This action shall become final and effective 14 days following the date this Resolution
was adopted unless within such time an appeal or call for review is filed with the
Community Development Director in accordance with the provisions of Title 20
(Planning and Zoning), of the Newport Beach Municipal Code.
PASSED, APPROVED, AND ADOPTED THIS 22ND DAY OF AUGUST, 2024.
AYES: Barto, Ellmore, Harris, Langford, Lowrey, Rosene, and Salene
NOES: None
ABSTAIN: None
ABSENT: None
BY:_________________________
Mark Rosene, Chair
BY:_________________________
David Salene, Secretary
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