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HomeMy WebLinkAboutZA2013-039 - Approved UP2013-009 - 143 Newport Center DriveRESOLUTION NO. ZA2013 -039 A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH APPROVING MINOR USE PERMIT NO. UP2013 -009 TO ALLOW A TYPE 47 (ON SALE GENERAL) ALCOHOLIC BEVERAGE CONTROL LICENSE AT A NEW FOOD SERVICE, EATING AND DRINKING ESTABLISHMENT LOCATED AT 143 NEWPORT CENTER DRIVE (PA2013 -109) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Red O, LLC, with respect to property located at 143 Newport Center Drive, and legally described as Parcel 3 of Lot Line Adjustment No. LA2012 -005, recorded September 11, 2012 as Instrument No. 2012000529298 of official records, in the office of the County Recorder of the County of Orange, requesting approval of a minor use permit. 2. The applicant requests a minor use permit to allow a Type 47 (On Sale General) Alcoholic Beverage Control (ABC) license for Red O, a food service, eating and drinking establishment with late hours (after 11:00 p.m.), live entertainment, with and two outdoor dining patios. Due to the late hours of operation (after 11:00 p.m.), approval of an Operator's License by the Newport Beach Police Department will be required. 3. The subject property is located within the Fashion Island Sub -Area of the PC -56 (North Newport Center Planned Community) Zoning District and the General Plan Land Use Element category is CR (Regional Commercial). 4. The subject property is not located within the coastal zone. 5. A public hearing was held on July 25, 2013 in the City Hall Council Chambers, 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Zoning Administrator at this meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This project has been determined to be categorically exempt under the requirements of the California Environmental Quality Act under Class 1 (Existing Facilities). 2. The proposed project involves the addition of alcoholic beverages at a restaurant that is under construction that will include live entertainment and two outdoor dining patios. Therefore, both the interior use and outdoor dining patios qualify for a categorical exemption under Class 1. Zoning Administrator Resolution No. ZA2013 -039 Paqe 2 of 12 SECTION 3. REQUIRED FINDINGS. In accordance with Section 20.48.030 (Alcohol Sales) of the Newport Beach Municipal Code, the following findings and facts in support of the findings for a use permit 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 proposed use is consistent with Section 20.48.030 (Alcohol Sales) of the Zoning Code, 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 proposed establishment is located within Reporting District 39, wherein the number of crimes is higher than adjacent Reporting Districts (RDs) and the City. The adjacent RDs (43, 44, and 47) have a lower number of crimes as they are primarily residential with few commercial uses. Due to the high concentration of commercial land uses in Fashion Island, the crime rate and shoplifting rate is greater than adjacent residential Reporting Districts; however, the Newport Beach Police Department does not consider the number significant given the type of development within this Reporting District. ii. The numbers of alcohol- related calls for service, crimes, or arrests in the reporting district and in adjacent reporting districts. 1. Due to the high concentration of commercial land uses, the calls for service and number of arrests are greater than adjacent residential Reporting Districts. The Police Department does not consider the rate high because of the concentration of restaurants and commercial uses within Fashion Island and the surrounding North Newport Center. The Newport Beach Police Department has not previously reported any calls for service to the subject property since the proposed use is part of a new development project. 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. Fashion Island does not abut sensitive land uses and is separated from other uses by parking lots, roadways and other commercial uses. Residential uses are permitted in the northern sections of the PC -56 (North Newport Center Planned Community) Zoning Tmplt: 0 511 612 01 2 Zoning Administrator Resolution No. ZA2013 -039 Paqe 3 of 12 District within Blocks 500, 600, 800, and San Joaquin Plaza. The proposed use is not located in close proximity to these residential districts, day care centers, park and recreation facilities, places of religious assembly, and schools. iv. The proximity to other establishments selling alcoholic beverages for either off -site or on -site consumption. 1. Muldoon's Irish Pub is located at 202 Newport Center Drive to the south of the project site at the intersection of Anacapa and Newport Center Drive. Muldoon's is authorized to operate until 2:00 a.m. and provides live entertainment, dancing, and Type 47 (On Sale General) and Type 68 (Portable Bar) alcohol licenses. Off -sale alcohol sales are located in the vicinity at Whole Foods, at 461 Newport Center Drive, within Fashion Island. Additionally, there are many comparable restaurant establishments within the Fashion Island Shopping Center. These include other pad restaurant tenants such as Roy's Hawaiian Fusion, Fleming's Steak House, and True Food Kitchen. The Type 47 (On Sale, General) alcohol license requested is the same as those obtained for said establishments and there is no evidence suggesting these uses have been detrimental to the neighborhood. However, Red O and the recently approved Fig & Olive will be the only locations with late hours after 12:00 midnight within Fashion Island. While the proposed hours of operation are later, an adequate security plan per the Police Department is in place for the Fashion Island Shopping Center and conditions of approval are proposed to adequately manage the late hour component of the proposed restaurant. v. Whether or not the proposed amendment will resolve any current objectionable conditions. 1. The project has been reviewed and conditioned to ensure that the purpose and intent of Section 20.48.030 (Alcohol Sales) of the Zoning Code is maintained and that a healthy environment for residents and businesses is preserved. The service of alcohol is intended for the convenience of customers dining at the restaurant. Operational conditions of approval relative to the sale of alcoholic beverages will help ensure compatibility with the surrounding uses and minimize alcohol related impacts. 2. The restaurant use will be located within a shopping center designated to include such development. The Regional Commercial (CR) designation of the General Plan allows eating and drinking establishments. The service and consumption of alcohol at the proposed restaurant, pursuant to a Type 47 Alcoholic Beverage Control license under the conditions imposed by this Minor Use Permit that it will be operated and maintained, complies with the provisions of the Zoning Code and the North Newport Center Planned Community District Regulations. 3. The restaurant will be adjacent to a highly - traveled commercial area that is occupied by a mixture of office and retail uses. It is anticipated that the establishment will serve visitors and employees of the nearby businesses who stop and eat within the North Newport Center area. Adding alcohol service to the menu will compliment the food service and provide for the convenience of customers. Tmplt: 0 511 612 01 2 Zoning Administrator Resolution No. ZA2013 -039 Paqe 4 of 12 4. The proposed restaurant is located within a shell building that is currently under construction. Improvement to the interior of the building for the restaurant use is currently in plan check and will be designed specifically for a restaurant that includes on -site service and consumption of alcoholic beverages. Minor Use Permit In accordance with Section 20.52.020.E (Findings and Decision) of the Newport Beach Municipal Code, the following findings and facts in support of the findings for a use permit are set forth: Finding B. The use is consistent with the General Plan and any applicable specific plan: Facts in Support of Finding 1. The Land Use Element of the General Plan designates the project site as Regional Commercial (CR), which is intended to provide retail, entertainment, service, and supporting uses that serve local and regional residents. The proposed restaurant with alcoholic beverage sales and live entertainment is a use that serves local and regional residents and is consistent with land uses in the CR land use designation. Finding C. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code: Facts in Support of Finding 1. The project is located in the Fashion Island Sub -Area of the PC -56 (North Newport Center Planned Community) Zoning District. Fashion Island is intended to be a regional retail and entertainment center and a day /evening destination with a wide variety of uses that will serve visitors, residents, and employees of the area. The restaurant with alcoholic beverage sales and live entertainment is a commercial use that serves visitors, residents, and employees in the area and, therefore, is consistent with the purposes of the North Newport Center Planned Community District for the Fashion Island Sub -Area. 2. Eating and Drinking Establishments are permitted uses within the Fashion Island Sub - Area of the North Newport Center Planned Community Zoning District. Pursuant to the Planned Community Text, live entertainment falls beneath the definition of "Commercial Recreation and Entertainment" which is a permitted use within the Fashion Island subarea. Pursuant to the Planned Community Text, the on- premise sale of alcohol in conjunction with an eating and drinking establishment requires a minor use permit. Tmplt: 0 511 612 01 2 Zoning Administrator Resolution No. ZA2013 -039 Paqe 5 of 12 3. The proposed outdoor dining area and the restaurant area are within the limits of the cumulative floor area allocated for Fashion Island. Finding D. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity: Facts in Support of Finding 1. The Fashion Island Sub -Area permits a range of retail, dining, and commercial entertainment uses within the PC -56 (North Newport Center Planned Community) Zoning District. While the proposed establishment provides a component of late night dining services similar to a lounge, the use is compatible with surrounding permitted commercial uses in the vicinity and there are no sensitive land uses located nearby. 2. The proposed hours of operation are 9:00 a.m. to 2:00 a.m., daily. While the proposed hours of operation for Red O are later than the hours for other restaurants within Fashion Island, an adequate security plan is in place for the Fashion Island Shopping Center and conditions of approval are proposed to adequately manage the late hour component of the proposed restaurant. 3. Due to the late hours of operation (after 11:00 p.m.), approval of an Operator's License by the Newport Beach Police Department will be required. A copy of the Fashion Island Security Plan will be provided as part of the operator license process for the proposed business. An operator license required pursuant to NBMC Chapter 5.25 may be subject to additional and /or more restrictive conditions to regulate and control potential nuisances associated with the operation of the restaurant. The operator license will help ensure compatibility of the proposed business with the surrounding uses in the vicinity. 4. Live entertainment in the form of a piano bar and mood music is requested during the regular hours of operation. The recommended hours of operation for live entertainment during the evening hours are until 1:00 a.m., daily, to encourage patrons to leave in compliance with the 2:00 a.m. closing hour. 5. The on -site consumption of alcoholic beverages will be incidental to the restaurant use. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period, per the conditions of approval. Alcoholic beverage service will be under the supervision of employees who have completed a certified training program pursuant to Condition of Approval No. 15. Tmplt: 0 511 612 01 2 Zoning Administrator Resolution No. ZA2013 -039 Paqe 6 of 12 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: Facts in Support of Finding 1. The Fashion Island shopping center provides adequate parking and circulation within the surface parking lots and parking structures on site. 2. This site has been reviewed by the Fire Department to ensure adequate public and emergency vehicle access is provided. Utilities are provided with all applicable requirements. 3. The site is under construction with a shell building designed for a restaurant use. Improvement to the interior of the building for the restaurant use is currently in plan check. 4. Improvements to the project site 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, a safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Facts in Support of Findinq 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 food service, eating and drinking establishment with alcohol service will serve visitors and the surrounding business community. The proposed establishment will provide alcohol service as a public convenience to visitors and workers within the surrounding area. 3. Fashion Island management has historically provided efficient on -site security and cooperates with the Newport Beach Police Department. The provision of an operator license will further enable the Police Department to regulate the operation of the proposed business. Tmplt: 0 511 612 01 2 Zoning Administrator Resolution No. ZA2013 -039 Paqe 7 of 12 4. The applicant is required to install a grease interceptor, obtain Health Department approval prior to opening for business, and 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: The Zoning Administrator of the City of Newport Beach hereby approves Minor Use Permit No. UP2013 -009 (PA2013 -109), subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. 2. This action shall become final and effective fourteen days after the adoption of this Resolution unless within such time an appeal is filed with the Director of Community Development in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED AND ADOPTED THIS 25th DAY OF JULY, 2013. 0 , Zoning Administrator Tmplt: 0 511 612 01 2 Zoning Administrator Resolution No. ZA2013 -039 Paqe 8 of 12 EXHIBIT "A" CONDITIONS OF APPROVAL Planning Division Conditions 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. Alcohol service shall be limited to a Type 47 (On Sale General) Alcoholic Beverage Control License. 3. The hours of operation shall be limited to between 9:00 a.m. to 2:00 a.m., daily. 4. There shall be no live entertainment allowed on the premises without first obtaining a Live Entertainment Permit from the City. Live entertainment shall be permitted at the subject property until 1:00 a.m., daily or earlier if required by the Live Entertainment Permit. Prior to the final of building permits for the restaurant tenant improvement, the applicant shall obtain a Live Entertainment Permit from the Revenue Division. 5. The operator as well as any future operators of the restaurant shall obtain an Operator License pursuant to Chapter 5.25 of the Municipal Code to ensure the business is operated in a safe manner. The Operator License may be subject to additional and /or more restrictive conditions to regulate and control potential late -hour nuisances associated with the operation of the restaurant. 6. Prior to the issuance of building permits, Fair Share Traffic Fees shall be paid for any additional gross floor area associated with the restaurant and mezzanine in accordance with Chapter 15.38 of the Newport Beach Municipal Code. The applicant shall be credited for square footage identified in the restaurant pad shell building under Plan Check No. 1364 -2012 and the remaining balance shall be charged to the applicant. 7. Prior to the issuance of building permits, San Joaquin Transportation Corridor Fees shall be paid for any additional gross floor area associated with the restaurant and mezzanine. The applicant shall be credited for square footage identified in the restaurant pad shell building under Plan Check No. 1364 -2012 and the remaining balance shall be charged to the applicant. 8. Approval does not permit the premises to operate as a bar, tavern, cocktail lounge or nightclub as defined by the Newport Beach Municipal Code, unless the Zoning Administrator first approves an amended minor use permit. This Minor Use Permit shall be terminated if the operation is no longer maintained as a "bona fide public eating place" as defined by the California Department of Alcoholic Beverage Control. 9. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee. Tmplt: 0 511 612 01 2 Zoning Administrator Resolution No. ZA2013 -039 Paqe 9 of 12 10. No games or contests requiring or involving the consumption of alcoholic beverages shall be permitted. 11. There shall be no on -site radio, television, video, film or other electronic media broadcasts, including recordings to be broadcasted at a later time, which include the service of alcoholic beverages, without first obtaining an approved Special Event Permit issued by the City of Newport Beach. 12. No "happy hour" type of reduced price alcoholic beverage promotion shall be allowed except when served in conjunction with food ordered from the full service menu. 13. 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. 14. A Special Event Permit is required for any event or promotional activity outside the normal operational characteristics of this restaurant business 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. 15. There shall be no dancing allowed on the premises unless permitted by a Special Events permit. 16. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The licensee shall at all times maintain records, which reflect separately the gross sales of food and the gross sales of alcoholic beverages of the licensed business. These records shall be kept no less frequently than on a quarterly basis and shall be made available to the Police Department on demand. 17. 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. 18. All owners, managers, and employees selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for selling alcoholic beverages. The certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service or other certifying /licensing body, which the State may designate. The establishment shall comply with the requirements of this section within 180 days of the issuance of the certificate of occupancy. Records of each owner's, manager's, and employee's successful completion of the required certified training program shall be maintained on the premises and shall be presented upon request by a representative of the City of Newport Beach. Tmplt: 0 511 612 01 2 Zoning Administrator Resolution No. ZA2013 -039 Paqe 10 of 12 19. The operator of the restaurant facility shall be responsible for the control of noise generated by the subject facility. 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. 20. The boundary of the accessory outdoor dining area shall be marked through the use of a 36- inch -high rail. Fences, walls, or similar barriers shall serve only to define the outdoor dining area and not constitute a permanent all weather enclosure. 21. All mechanical equipment shall be screened from view of adjacent properties and adjacent public streets, and shall be sound attenuated in accordance with Chapter 10.26 of the Municipal Code, Community Noise Control. 22. 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. 23. 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). 24. The operator of the food service use shall be responsible for the clean -up of all on -site and off -site trash, garbage and litter generated by the use. 25. Storage outside of the building shall be prohibited, with the exception of the required trash container enclosure. 26. 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, and debris from the premises and on all abutting sidewalks within 20 feet of the premises. Graffiti shall be removed within 48 hours of written notice from the City. 27. The alcoholic beverage outlet operator shall take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, and areas surrounding the alcoholic beverage outlet and adjacent properties, if directly related to the patrons of the subject alcoholic beverage outlet. 28. All proposed signs shall be in conformance with the provisions of the PC -56 (North Newport Center Planned Community), Chapter 20.42 (Sign Standards) of the Newport Beach Municipal Code, or an approved Comprehensive Sign Program for the project site. Tmplt: 0 511 612 01 2 Zoning Administrator Resolution No. ZA2013 -039 Paqe 11 of 12 29. The applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this permit. 30. The Zoning Administrator may add to or modify conditions of approval to this Minor Use Permit, upon a determination that the operation which is subject of this Minor Use Permit causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. 31. Any changes in operational characteristics, hours of operation, expansion in area, or modification to the floor plan, shall require an amendment to this Minor Use Permit, unless otherwise approved by the Planning Division. 32. Should the business, subject to the Minor Use Permit conditioned herein, be sold or otherwise come under different ownership or a change in operators, any future owners, operators, or tenants shall be notified of the conditions of this approval by either the current business owner, property owner, or the leasing agent. 33. This Minor Use Permit shall expire unless exercised within twenty -four months from the date of approval as specified in Section 20.54.60 of the Newport Beach Municipal Code. 34. To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of the Red O Minor Use Permit including, but not limited to, the Minor Use Permit No. UP2013 -009 (PA2013 -109). This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant, City, and /or the parties initiating or bringing such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. Building Division and Fire Department Conditions 35. 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 prior to the issuance of a building permit. Tmplt: 0 511 612 01 2 Zoning Administrator Resolution No. ZA2013 -039 Paqe 12 of 12 36. A covered wash -out area (36 inches wide by 36 inches deep by 6 feet high) for refuse containers and kitchen equipment shall be provided and shall drain directly into the sewer system, unless otherwise approved by the Community Development Director and Public Works Director in conjunction with the approval of an alternative drainage plan. The washout area shall be specifically shown on the construction drawings submitted for building permits. 37. The facility shall comply with the provisions of Chapter 14.30 of the Municipal Code for commercial kitchen grease disposal, as determined by the Building Division and the Utilities Department. 38. The restaurant shall provide the number of plumbing fixtures to satisfy the requirements of Chapter 4 of the California Building Code, 2010. 39. Prior to issuance of building permits, an exit analysis shall be provided for the outdoor dining patio. 40. The facility shall be designed to meet exiting and fire protection requirements as specified by the California Building Code and shall be subject to review and approval by the Building Division. 41. 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. Tmplt: 0 511 612 01 2