HomeMy WebLinkAbout2008-43 - Approving Use Permit 2007-027 - 600 E Bay AveRESOLUTION NO. 2008- 43
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH APPROVING USE PERMIT NO. 2007-
027 TO ALLOW THE ON -SALE AND OFF -SALE OF BEER
AND WINE AT AN EXISTING RESTAURANT LOCATED AT
600 EAST BAY AVENUE #A -7 (PA 2007 -219)
WHEREAS, an application was filed by Bay Burger Company, with respect to
property located at 600 East Bay Avenue #A7, and legally described as Parcel 1, Block B,
Parcel Map Book 208/04 -06, requesting approval of amendment to Use Permit No. 3120
to allow a Type 41 ABC license for the on -sale and off -sale of beer and wine, pursuant
to Municipal Code Chapter 20.89 (Alcoholic Beverage Outlets) in conjunction with the
operations of an existing restaurant; and
WHEREAS, at a noticed public hearing held on April 3, 2008, the Planning
Commission considered the project application, plans, and written and oral evidence
presented at this meeting, and denied Use Permit No. 2007 -027; and
WHEREAS, on April 17, 2008, an appeal of the Planning Commission's decision
to deny Use Permit No. 2007 -027 was filed by the applicant requesting that the City
Council reconsider the Planning Commission's decision; and
WHEREAS, a public hearing was held on May 27, 2008, in the City Hall Council
Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place,
and purpose of the meeting was given in accordance with the Municipal Code.
Evidence, both written and oral, was presented to, and considered by, the City Council
at this meeting; and
WHEREAS, pursuant to Section 20.95.060 C, the public hearing on an appeal
was conducted "de novo," meaning that it is a new hearing and the decision being
appealed has no force or effect as of the date the appeal was file; and
WHEREAS, the Land Use Element of the General Plan designates the project
site as Private Institutions, which is intended for privately owned facilities that serve the
public; and
WHEREAS, the Local Coastal Plan designates the site as General Commercial,
which is intended to provide for a wide range of commercial activities oriented primarily
to serve citywide or regional needs; and
WHEREAS, the subject property is designated as a Retail Service Commercial
land use within the Specific Plan District #8 (Central Balboa) zoning district, which is
intended to provide the Central Balboa area with commercial services for permanent
residents and visitors of the area; and
WHEREAS, the Police Department has advised that Reporting District 12 has a
lower concentration of ABC licenses than Reporting District 15, and a higher
concentration of ABC licenses than Reporting District 13; and
WHEREAS, the Police Department has advised that Reporting District 12 is not
within an area where the number of crimes is at least 75% higher than the average of all
City Reporting Districts; and
WHEREAS, the proposed use is consistent with the purpose and intent of
Section 20.89 (Alcoholic Beverage Outlets) of the Newport Beach Municipal Code; and
WHEREAS, consistent with required findings for approval of a use permit as set
forth in Section 20.91.035 of the Newport Beach Municipal Code, the following findings
and facts in support of such findings are made:
Finding: That the proposed location of the use is in accord with the objectives of
this code and the purpose of the district in which the site is located.
Facts in Support of Finding:
a. The project is located in the Retail Service Commercial (RSC) district of
the Specific Plan District #8 (Central Balboa) which is intended to provide
the Central Balboa area with commercial services for permanent residents
and visitors of the area. The existing eating establishment with proposed
alcohol sales is a commercial use which serves residents and visitors and,
therefore, is consistent with the purposes of the Specific Plan District #8.
b. Subject to the approval of a use permit by the Planning Commission, a
restaurant use with alcoholic beverage service is permitted within this
district.
2. Finding: That the proposed location of the Use Permit and the proposed
conditions under which it would be operated or maintained will be consistent with
the General Plan and the purpose of the district in which the site is located; will
not be detrimental to the public health, safety, peace, morals, comfort, or welfare
of persons residing or working in or adjacent to the neighborhood of such use;
and will not be detrimental to the properties or improvements in the vicinity or to
the general welfare of the city.
Facts in Support of Finding:
a. The Land Use Element of the General Plan designates the project site as
Private Institutions, which is intended for privately owned facilities that
serve the public.
b. The ancillary use of the restaurant with beer and wine sales will not be
detrimental to the site or to the community based upon information received
at the hearing and information provided by the Police Department
c. The on -site consumption of alcohol will be incidental to the eating
establishment 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. Alcohol service will be under the supervision of
LEAD- trained employees, and a minimum of three employees will be on
duty at all times.
d. The proposed hours of operation, 7:00 a.m. to 10:00 p.m., will not
significantly change characteristics of the existing commercial area. These
proposed hours of operation are within the hours of operation for the entire
Fun Zone.
3. Finding: That the proposed use will comply with the provisions of this Code,
including any specific condition required for the proposed use in the district in
which it would be located.
Facts in Support of Finding:
a. The project has been conditioned to comply with the development and
operational regulations pursuant to Section 20.89.050 (Alcoholic Beverage
Outlets) of the Municipal Code as they relate to the operation of the
proposed project. Employees serving alcoholic beverages will receive LEAD
training, and 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. The exterior of the alcoholic
beverage outlet 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.
b. The project has been reviewed and conditioned to ensure that potential
conflicts with surrounding land uses are minimized to the greatest extent
possible. Therefore, the project meets the purpose and intent of Chapter
20.89 of the Municipal Code by preserving a healthy environment for
residents and businesses. 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 alcoholic
beverage outlet and adjacent properties during business hours, if directly
related to the patrons of the subject alcoholic beverage outlet.
WHEREAS, the project qualifies for a Categorical Exemption pursuant to 15301
(Existing Facilities) of the Implementing Guidelines of the California Environmental Quality
Act (CEQA); and
NOW THEREFORE, BE IT RESOLVED, that the City Council of the City of
Newport Beach hereby approves Use Permit No. 2007 -027, subject to the Conditions set
forth in Exhibit "A ".
PASSED, APPROVED AND ADOPTED THIS 761th DAY OF JA E. 2008.
ATTEST:
r
Cl Y CLERK
EXHIBIT "A"
CONDITIONS OF APPROVAL
USE PERMIT NO. 2007-027
PROJECT SPECIFIC CONDITIONS:
1. The project must be in substantial conformance with the approved site plan,
floor plans, and elevations, except as noted below.
2. The hours of operation shall be limited to 7:00 am to 10:00 pm.
3. A minimum of two employees shall be on duty at all times. If in the future
alcoholic beverages are allowed on the patio, a security plan must be
approved by the Police Department.
4. The applicant shall take reasonable steps to ensure that no open containers
with alcohol beverages leave the indoor seating area, including the posting of
loitering, open container, and other signs specified by the Alcoholic Beverage
Control Act.
STANDARD CONDITIONS:
5. Full menu food service shall be available for ordering at all times that the
restaurant establishment is open for business.
6. 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.
7. No live entertainment or dancing shall be permitted.
8. No audible paging system or speaker system shall be utilized any where on
the premises at any time.
9. All signs and displays must conform to the City Municipal Code requirements.
10. 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.
11. Storage outside of the building in the front or at the rear of the property shall
be prohibited.
12. The exterior of the alcoholic beverage outlet 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.
13. 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 sale of food and gross sale of
beverages of the licensed business. Said records shall be kept no less
frequently than on a quarterly basis and shall be made available to the
Planning Department on demand.
14. The operator of the restaurant facility shall be responsible for the control of
noise generated by the subject facility. The noise generated by the proposed
use shall comply with the provisions of the Newport Beach Municipal Code.
15. 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 during business hours, if directly related to the
patrons of the subject alcoholic beverage outlet. If the operator fails to
discourage or correct nuisances, the Planning Commission may review,
modify, or revoke this Use Permit in accordance with Chapter 20.96 of the
Zoning Code.
16. A Special Events 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.
17. Petitioner shall not share any profits, or pay any percentage or commission to
a promoter or any other person, based upon moneys collected as a door
charge, cover charge, or any other form of admission charge, including
minimum drink orders or the sale of drinks.
18. Any event or activity staged by an outside promoter or entity, where the
restaurant owner or his employees or representatives share in any profits, or
pay any percentage or commission to a promoter or any other person, based
upon moneys collected as a door charge, cover charge, or any other form of
admission charge, including minimum drink orders or sale of drinks is
prohibited.
19. The applicant shall comply with all federal, State, and local laws. Material
violation of any of those laws in connection with the use will be cause for
revocation of this permit.
20. The type of alcoholic beverage license issued by the California Board of
Alcoholic Beverage Control shall be a Type 41 in conjunction with the service
of food as the principal use of the facility. Any upgrade in the alcoholic
beverage license shall be subject to the approval of an amendment to this
application and may require the approval of the Planning Commission.
21. That the Planning Commission may add to or modify conditions of approval to
this Use Permit, or recommend to the City Council the revocation of this Use
Permit, upon a determination that the operation which is subject of this Use
Permit causes injury, or is detrimental to the health, safety, peace, morals,
comfort, or general welfare of the community.
22. Any changes in operational characteristics, hours of operation, expansion in
area, or modification to the floor plan, shall require an amendment to this Use
Permit or the processing of a new use permit, unless otherwise approved by
the Planning Department.
23. Should the business subject to the 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.
24. 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.
25. Approval does not permit the premises to operate as a bar, tavern, cocktail
lounge, or nightclub as defined by the Municipal Code, unless the Planning
Commission first approves a use permit.
26. This 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.
27. That this Use Permit shall expire unless exercised within twenty -four months
from the date of approval as specified in Section 20.91.50 of the Newport
Beach Municipal Code.
STATE OF CALIFORNIA }
COUNTY OF ORANGE
CITY OF NEWPORT BEACH }
I, LaVonne M. Harkless, City Clerk of the City of Newport Beach, California, do
hereby certify that the whole number of members of the City Council is seven; that the foregoing
resolution, being Resolution No. 2008 -43 was duly and regularly introduced before and adopted by
the City Council of said City at a regular meeting of said Council, duly and regularly held on the
10th day of June 2008, and that the same was so passed and adopted by the following vote, to wit:
Ayes: Henn, Rosansky, Daigle, Webb, Curry, Gardner, Mayor Selich
Noes: None
Absent: None
Abstain: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
official seal of said City this 11th day of June 2008.
(Seal)
r
City Clerk
Newport Beach, California