HomeMy WebLinkAboutZA2016-017 - AMEND MINOR USE PERMIT UP2011-09 AND OPERATOR LICENSE TO CHANGE TYPE 41 TO TYPE 47 - 999 Newport Center Dr RESOLUTION NO. ZA2016-017
A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE
CITY OF NEWPORT BEACH APPROVING MINOR USE PERMIT
NO, UP2016-001 AMENDING MINOR USE PERMIT NO. UP2011-
029 (PA2011-170) TO CHANGE THE ALCOHOL LICENSE TYPE
FROM A TYPE 41 (BEER AND WINE) TO A TYPE 47 (ON SALE
GENERAL) LOCATED AT 999 NEWPORT CENTER DRIVE
(PA2016-001).
THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Steve Rawlings of Alcoholic Beverage Consulting on behalf of
the Irvine Company and Regal Cinemas, Inc., with respect to property located at 999
Newport Center Drive, and legally described as Parcel 2 of Lot Line Adjustment LA2009-
001 requesting approval of an amendment to a Minor Use Permit.
2. On November 9, 2011, the Zoning Administrator approved Minor Use Permit No.
UP2011-029 (PA2011-170) to allow the addition of a Type 41 (On Sale Beer and Wine,
Eating Place) Alcoholic Beverage Control ("ABC') license at the existing movie theater.
3. On January 10, 2013, the Zoning Administrator approved Amendment No. 1 to modify
Minor Use Permit No. UP2011-029 (PA2012-144) and allow the addition of two outdoor
dining areas totaling approximately 800 square feet in area, a change in the approved
hours of operation to allow the theater to open and serve alcohol at 11:00 a.m., the
addition of a second concession area dedicated to the sale of beer and wine, the
service and consumption of alcohol during all movie screenings, and the option to
order food and alcohol from a server within the theater screening rooms and outdoor
dining areas.
4. The applicant requests Amendment No. 2 to modify Minor Use Permit No. UP2011-
029 to change an existing Type 41 (Beer and Wine) Alcoholic Beverage Control
License to a Type 47 (On Sale General) Alcoholic Beverage Control License within an
existing movie theater. The movie theater currently operates from 11:00 a.m. through
1:00 a.m., daily, and is limited to 680 seats. Pursuant to NBMC 5.25, the operation as
described requires the owner/operator to modify Operator License No. OL2013-001
because the proposed amendment includes a change in the alcohol license type for
the establishment.
5. The subject property is located within the North Newport Center Planned Community
(PC-56) Zoning District and the General Plan Land Use Element category is Regional
Commercial (CR).
6. The subject property is not located within the coastal zone.
Zoning Administrator Resolution No. ZA2016-017
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7. A public hearing was held April 14, 2016, in the Corona del Mar Conference Room (Bay
E-1st Floor) at 100 Civic Center Drive, Newport Beach. 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 pursuant to Title 14 of the
California Code of Regulations (Section 15301, Article 19 of Chapter 3, Guidelines for
Implementation of the California Environmental Quality Act) under Class 1 (Existing
Facilities).
2. The change in alcoholic beverage license type is a negligible expansion of the existing
movie theater use. No physical changes to the existing theater with alcohol sales would
be authorized by this amendment.
SECTION 3. REQUIRED FINDINGS.
In accordance with Section 20.48.030 (Alcohol Sales) and Section 20.52.020 (Conditional
Use Permits and Minor Use Permits) of the Newport Beach Municipal Code, the following
findings and facts in support of such findings 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 Findinq:
1. The purpose of Section 20.48.030 (Alcohol Sales) is to preserve a healthy environment
for residents and businesses by establishing a set of consistent standards for the safe
operation of retail alcohol sales establishments. The service of alcoholic beverages is
intended for the convenience of movie theater patrons. Operational conditions of
approval recommended by the Police Department relative to the sale and service of
alcoholic beverages will ensure compatibility with the surrounding uses and minimize
alcohol-related impacts.
2. Due to the high concentration of commercial land uses, the calls for service, crime
rate, and number of arrests are greater than adjacent reporting districts containing
residential uses. Fashion Island does not abut sensitive land uses and is separated from
other uses by parking lots, roadways and other commercial uses. The proposed use is
not located in close proximity to residential districts, day care centers, park and recreation
facilities, places of religious assembly, or schools. The Police Department has reviewed
the Minor Use Permit application and recommended conditions of approval to ensure that
the design and security of the movie theater are properly addressed.
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3. Several restaurants in the Fashion Island Sub-Area provide alcohol service as an
amenity to customers. The number of alcohol licenses and the type of alcohol service
proposed is typical and expected to be found at a regional mall such as Fashion
Island.
4. The movie theater does not have any current objectionable conditions.
5. The provision of food service and alcoholic beverages sales will not substantially change
the operational characteristics of the movie theater.
6. The existing movie theater is an allowed use in the Fashion Island Sub-Area of the North
Newport Center Planned Community. The on-site consumption of alcoholic beverages
provides a public convenience by allowing the sale of alcoholic beverages in addition to
other concession items offered for sale.
Finding:
B. The use is consistent with the General Plan and any applicable specific plan.
Facts in Support of Finding:
1. The property is designated as Regional Commercial (CR) by the Land Use Element of
the General Plan. The theater use is consistent with that designation as it is a supporting
use that is integrated as part of a retail multi-tenant commercial center, an allowed use
under the CR designation.
2. The existing movie theater is consistent with General Plan Anomaly 44, which limits
Fashion Island to 680 movie theater seats.
3. The food and alcohol concessions for the movie theater have proven compatible with
the existing and allowed land uses in Fashion Island.
4. The subject property is not part of a specific plan area.
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 subject property is located within the Fashion Island Sub-Area of PC-56, which
allows commercial recreation and entertainment uses (including movie theaters) and
eating and drinking establishments by right. Alcohol sales is an allowed use upon the
approval of a Minor Use Permit by the Zoning Administrator.
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2. The intent of the PC-56 Zoning District is to allow for uses that support existing retail,
dining, and commercial entertainment uses. Fashion Island is intended to be a vibrant
regional retail and entertainment center and a day/evening destination with a wide
variety of businesses that serve visitors, residents, and employees of the area. Alcohol
sales have proven compatible since 2012 and the proposed changes to alcohol service
at the movie theater are not expected to generate significant alcohol-related issues and
should also prove compatible with other uses within Fashion Island.
3. The existing movie theater is within the limits of the 680 seat limit allocated for the
Fashion Island portion of the North Newport Center Planned Community. The proposed
alcohol service change does not affect the development limit because the theater is
existing and is not changing.
4. Fashion Island has a Regional Commercial parking requirement of 3 spaces per 1,000
square feet. The proposed amendment does not change or increase the parking
requirement.
5. The proposed project is consistent with the on-sale alcohol sales provisions within
Chapter 20.48 (Standards for Specific Land Uses) of the Zoning Code.
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. A movie theater has operated in this location since 1989 and the use has not proven
detrimental to the area. The movie theater has provided food and beer & wine service
in the past and demonstrated the location's capability of operating as a compatible use
with other land uses in the vicinity. The existing beer & wine service has been offered
for approximately five years and no alcohol-related problems have been reported.
2. The service of alcohol will remain restricted to between the hours of 11:00 a.m. and 1:00
a.m., daily, consistent with the existing Minor Use Permit.
3. The movie theater is located within the center of the Fashion Island Mall on the second
floor. Alcohol sales will be available at two concession areas within the main lobby
dedicated for only alcohol sales. The theater also provides the option to order food and
alcohol from a server within the theater screening rooms and outdoor dining areas.
4. Outdoor dining areas with alcoholic beverage service are typical and expected uses
within a regional mall such as Fashion Island.
5. There are no residential properties, or other sensitive land uses, within the immediate
vicinity of the theater.
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6. The operational conditions of approval recommended by the Police Department
relative to the sale of alcoholic beverages will ensure compatibility with the
surrounding uses and minimize alcohol related impacts.
7. The movie theater is required to comply with the California Building Code and
requirements of the California Department of Alcoholic Beverage Control to ensure the
safety and welfare of customers and employees within the movie theater.
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 project site is located within an existing movie theater building. The lobby and
theater screening rooms are designed and developed for food and beverage service.
2. Adequate public and emergency vehicle access, public services, and utilities are
provided within the existing infrastructure. Fashion Island is an outdoor mall with wide
and open walkways. Fashion Island is encircled by Newport Center Drive and is
developed with several surface parking and loading areas.
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 including discontinuing service to intoxicated patrons. The
operator must also correct conditions that constitute nuisance areas surrounding the
subject property and adjacent properties during business hours, if directly related to the
patrons of the movie theater.
2. The proposed alcohol service is provided as a public convenience to movie theater
patrons. The service of alcoholic beverages will provide an economic opportunity to
maintain a successful business at this location in a way which best serves the quality
of life for the surrounding community.
3. The hours of operation will be between 11:00 a.m. and 1:00 a.m., daily.
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4. The proposed amendment adds a wider variety of alcoholic beverages and will not
change the principal movie theater use.
5. Fashion Island provides the required parking for the entire mall and the proposed
amendment does not change or increase the parking requirement.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Zoning Administrator of the City of Newport Beach hereby approves Minor Use
Permit No. UP2016-001 (Amendment No. 2 to Minor Use Permit No. UP2011-029),
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.
3. This Resolution supersedes Zoning Administrator Action Letters dated November 9,
2011, for the approval of Minor Use Permit No. UP2011-029 (PA2011-170) and
January 10, 2013, for the approval of Amendment No. 1 to Minor Use Permit No.
UP2011-029 (PA2012-144), which upon vesting of the rights authorized by this
application, shall become null and void.
PASSED, APPROVED, AND ADOPTED THIS 14T" DAY OF APRIL, 2016.
re d Wisneski, AI P, zoning Administrator
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EXHIBIT "A"
CONDITIONS OF APPROVAL
1. The development shall be in substantial conformance with the approved site plan and
floor plan dated with this date of approval, except as modified by applicable conditions of
approval.
2. This Minor Use Permit may be modified or revoked by the Zoning Administrator upon a
finding of failure to comply with the conditions set forth in Chapter 20.54 (Permit
Review Procedures) of the Municipal Code, other applicable conditions and
regulations governing alcohol service, or should they determine 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.
3. Any change in operational characteristics, hours of operation, expansion in area, or
other modification to the approved plans, shall require an amendment to this minor use
permit or the processing of a new use permit.
4. This Minor 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 Newport
Beach Zoning Code, unless an extension is otherwise granted.
5. Should the Type 47 alcohol license be transferred, any future license holders, operators
or assignees shall be notified of the conditions of this approval by either the current
licensee, business operator, or the leasing company. Future licensees, operators or
assignees shall submit, within 30 days of transfer of the alcohol license, a letter to the
Planning Division acknowledging their receipt and acceptance of the limitations,
restrictions and conditions of approval of this minor use permit.
6. The project is subject to all applicable City ordinances, policies, and standards, unless
specifically waived or modified by the conditions of approval.
7. 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 Minor
Use Permit.
8. Approval is required from the Orange County Health Department.
9. The project shall comply with Building Code requirements regarding egress/exit analysis
and occupant load. The project may necessitate additional requirements, as required by
the Building Division.
10. Approval is required from the Fire Department. The project may necessitate additional
requirements regarding exit discharge widths, as required by the Fire Department.
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11. The approval is only for the sale and service of alcoholic beverages incidental to the
theater use. The type of alcoholic beverage license issued by the California
Department of Alcoholic Beverage Control shall be a Type 47 (On Sale General) in
conjunction with the movie theater as the principal use of the facility.
12. The hours of operation for sales, service, and consumption of alcohol at the movie
theater shall be allowed only between the hours of 11:00 a.m. to 1:00 a.m., daily. Any
increase in the hours of operation shall be subject to the approval of an amendment to
this Minor Use Permit.
13. Prior to implementation of this Minor Use Permit amendment, the operator of the theater
shall modify Operator License No. OL2013-001 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 theater. Future
operators are required to obtain an Operator License prior to assuming management of
the movie theater.
14. The alcoholic beverage sales concession shall be limited to a maximum of two
concession areas and shall be used in conjunction with the related food service
concessions. Any change in the operation of alcoholic beverage service or increase in
the counter space devoted to alcohol sales shall be subject to the approval of an
amendment to this Minor Use Permit issued by the Zoning Administrator.
15. 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.
16. 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 movie theater 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.
17, A Special Event Permit is required for any event or promotional activity outside the
normal operational characteristics of the approved use, as conditioned.
18. 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.
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19. Patrons shall be required to show valid identification to verify age at the point of sale for
alcohol.
20. This approval does not permit the premises to operate as a bar, tavern, cocktail lounge
or nightclub as defined by the Municipal Code, unless the Zoning Administrator first
approves a new or amended Minor Use Permit.
21. Alcoholic beverages shall be dispensed, sold, and served in containers that are easily
distinguishable from non-alcoholic beverage containers.
22. The sale of alcoholic beverages for consumption off the premises shall be prohibited.
23. No more than two (2) alcoholic beverages shall be sold or served to any one (1)
person during a single transaction. The delivery of alcoholic beverages to patrons
inside the auditoriums shall be limited to two (2) per patron per screening.
24. All sales or service of alcoholic beverages in the licensed premises shall be made only
from the concession bars or servers.
25. During the period of time from the initiation of seating until the completion of the
feature presentation, ambient lighting in the auditoriums shall remain at a level
sufficient enough to allow a reasonable person to observe patrons who may be
consuming alcoholic beverages.
26. Orders from patrons seated in theater seats must be made to the server serving that
area and the alcoholic beverages ordered must be personally delivered to the patron
by the server who took the order.
27. Servers shall not carry a supply of unordered alcoholic beverages. Food service from
the regular menu must be made available to patrons during all open hours.
28. The petitioner shall post and maintain professional quality signs measuring 12 inches by
12 inches with lettering no smaller than 2 inches in height that read, "No Alcoholic
Beverages Beyond This Point' at all premise exits.
29. No alcoholic beverages shall be consumed on any property adjacent to the licensed
premises under the control of the licensee.
30. The 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 or cover
charge, or any other 'form of admission charge, including minimum drink orders or the
sale of drinks. This does not include ticket sales or any other fee for the standard movie
theater use.
31. Live entertainment and dancing shall be prohibited as a part of the regular operation of
the movie theater.
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32. Strict adherence to the occupancy limits is required.
33. 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 upon demand.
34. No exterior amplified music, public address speakers, outside paging system,
loudspeaker, sound system, or other noise generating device shall be utilized in
conjunction with this movie theater.
35. 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 Zoning Administrator may
review, modify, or revoke this minor use permit in accordance with Chapter 20.68 of the
Zoning Code (Enforcement).
36. The area outside of the movie theater shall be maintained in a clean and orderly manner.
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 debris and graffiti from the
premises and on all abutting walkways within 20 feet of the premises. The operator of the
movie theater use shall be responsible for the clean-up of all on-site and off-site trash,
garbage, and litter generated by the use.
37. All trash shall be stored within dumpsters inside the mall buildings or designated
areas.
38. 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 Island Cinema Minor Use Permit including, but not
limited to, Minor Use Permit No. UP2016-001 (Amendment No. 2 to Minor Use Permit
No. UP2011-029) (PA2016-001). 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.
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