HomeMy WebLinkAboutZA2016-018 - UNIT B - FOOD SERVICE EATING AND DRINKING, NO LATE HOURS, TYPE 41 ABC - 211 Marine Ave RESOLUTION NO. ZA2016-018
A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE
CITY OF NEWPORT BEACH APPROVING MINOR USE PERMIT
NO. UP2016-006 FOR AN EXPANSION OF AN EXISTING FOOD
SERVICE EATING AND DRINKING ESTABLISHMENT,
INCLUDING A TYPE 41 ALCOHOLIC BEVERAGE CONTROL
LICENSE, LOCATED AT 211 MARINE AVENUE SUITES A AND
B (PA2016-025)
THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by John De Frenza, with respect to property located at 211
Marine Avenue, Suites A and B, and legally described as Lot 23 in Tract 102 requesting
approval of a minor use permit.
2. The applicant proposes a minor use permit to allow the expansion of an existing 556-
square-foot food service eating and drinking establishment located in Suite A, including
Type 41 (On Sale Beer and Wine — Eating Place) alcohol sales, into the 438-square-foot
retail space in Suite B. The total proposed net public area is 200 square feet.
3. The subject property is located within the Mixed Use Water Related (MU-W2) Zoning
District and the General Plan Land Use Element category is Mixed Use Water Related
(MU-W2).
4. The subject property is located within the coastal zone and designated as Mixed Use
Water Related (MU-W).
5. A public hearing was held on 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) of the Guidelines for CEQA.
2. The Class 1 exemption authorizes minor alterations to existing structures involving
negligible or no expansion of use. The proposed project involves interior
improvements to convert a retail space into a food service eating and drinking
establishment and involves no expansion in floor area.
Zoning Administrator Resolution No. ZA2016-018
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SECTION 3. REQUIRED FINDINGS.
In accordance with Section 20.52.020.E (Conditional Use Permits and Minor Use Permits —
Findings and Decision) and Section 20.48.030 (Alcohol Sales) of the Newport Beach
Municipal Code, the following findings and facts in support of such findings are set forth:
Findinq:
A. The use is consistent with the purpose and intent of Section 20.48.030 (Alcohol
Sales).
Facts in Support of Finding:
1 . The following criteria has been considered:
a. The crime rate in the reporting district and adjacent reporting districts as
compared to other areas in the City.
i. The property is located in Reporting District 42 (RD 42). The Part One
Crimes (Part One Crimes are the eight most serious crimes defined by
the FBI Uniform Crime report — homicide, rape, robbery, aggravated
assault, burglary, larceny-theft, auto theft, and arson) crime rate in RD 42
is lower than adjacent reporting districts 12, 41, and 43, and lower than
the City overall.
ii. In 2015, zero crimes were reported at the subject property.
iii. The Police Department has reviewed the proposal, provided operating
conditions of approval, and has no objection to the expansion of the food
service eating and drinking establishment and alcoholic beverage
license.
b. The numbers of alcohol-related calls for service, crimes, or arrests in the
reporting district and in adjacent reporting districts.
i. The number of alcohol related arrests and citations in RD 42 is lower
than adjacent Reporting Districts 41 and 12, and is higher than adjacent
Reporting District 43.
ii. In 2015, six calls for service were reported at the subject property. None
were for crimes due to the business practice of the applicant or over
service of alcohol.
c. 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.
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L The use is located on Marine Avenue in a Mixed Use zoning designation
which is consistent with the General Plan land use designation, Mixed
Use Water Related. The property is not located within close proximity to
any day care centers, hospitals, park and recreation facilities, places of
worship, schools, or similar uses that attract minors.
H. The subject property is in close proximity to residential zoning districts,
which is consistent with the intent of the General Plan land use
designation, which is to support marine-related uses intermixed with
buildings that provide residential on the upper floors.
d. The proximity to other establishments selling alcoholic beverages for either off-
site or on-site consumption.
i. There are 14 active alcoholic beverage control licenses in RD 42,
including the subject food service eating and drinking establishment. This
equals a per capita ratio of one license for every 197 residents, and is
lower than the citywide average of one license for every 194 residents.
e. Whether or not the proposed amendment will resolve any current objectionable
conditions.
L 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 establishment. 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.
ii. The existing hours of operation of the food service eating and drinking
establishment will minimize the potential effects on land use. The
establishment closes by 10:00 p.m. daily, which will ensure the use does
not become a late night bar, tavern, or nightclub.
Hi. There are no current objectionable conditions caused by the sale of
alcohol. Of the six calls for service to the subject property in 2015, none
were for crimes due to the business practice of the applicant or over
service of alcohol.
Finding:
B. The use is consistent with the General Plan and any applicable specific plan.
Facts in Support of Finding:
1. The General Plan land use designation for the subject property is Mixed Use Water
related, which permits uses that are permitted in the Commercial Recreational and
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Marine (CM), Commercial Visitor-Serving (CV), and Mixed-Use Vertical (MU-V)
designations. The proposed expanded food service eating and drinking establishment
is a use that is permitted in these zones with approval of a minor use permit and is
therefore consistent with the General Plan.
2. The subject property is not a 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 the Zoning Code and the Municipal Code.
Facts in Support of Finding:
1. The site is located in the MU-W2 (Mixed Use Water Related) Zoning District which is
intended to intermix marine-related uses with general commercial, visitor-serving
commercial and residential dwelling units. Food service eating and drinking
establishments with alcohol and no late hours are permitted in this zone with approval
of a minor use permit.
2. The existing food service eating and drinking establishment operates pursuant to Use
Permit No. UP2010-016 which allowed the sale and service of food and beverages
with incidental beer and wine sales, up to eight seats for customers, and hours of
operation to 10:00 p.m. daily.
3. The use is proposed to remain a food service eating and drinking establishment with
the same hours of operation and alcoholic beverage control license.
4. The proposed expansion will have a total of 200 square feet of net public area and will
create the same parking demand of no more than 1 space per 250 square feet of
gross floor area. Therefore, Zoning Code does not require additional parking to be
added onsite.
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 existing use permit, which included beer and wine sales, has been in effect since
2010 and has not proven detrimental to the area. The proposed expansion will
maintain the same operating hours, alcoholic beverage control license type, and
operating characteristics as the existing food service eating and drinking
establishment.
2. The operational conditions of approval recommended by the Newport Beach Police
Department relative to the sale of alcoholic beverages will ensure compatibility with the
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surrounding uses and minimize alcohol related impacts. The project has been
conditioned to ensure the welfare of the surrounding community and that the food
service eating and drinking establishment does not become a bar or tavern. The
establishment is required to comply with the requirements of the Alcoholic Beverage
Control Department to ensure the safety and welfare of customers and employees of
the establishment. The project has been conditioned so that no dancing or live
entertainment will be permitted on the premises.
3. The conditions of approval reflected in Exhibit A of this resolution ensure that potential
conflicts with surrounding land uses are eliminated or minimized to the greatest extent
possible.
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 proposed area of expansion is located within an existing retail tenant space, Suite
A. Suites A and B will be combined into one food service eating and drinking
establishment and will therefore share cooking facilities, storage, and a restroom. The
existing site and building design has demonstrated that it is physically suitable in terms
of design, location, shape, and size to support the expanded food service eating and
drinking establishment.
2. Adequate public and emergency vehicle access, public services, and utilities are
provided on-site.
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 that constitute a nuisance in 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 will continue to service the
neighborhood by providing dining services as a public convenience to the surrounding
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residential neighborhood as well as the visitors to the area, which is an intent of the
Mixed Use Water Related Zoning Designation. The service of alcohol will continue to
complement the principal use of the establishment and provide an economic
opportunity for the property owner and business owner to maintain a successful
business in a way that best serves the community.
3. As conditioned, the owners, managers, and employees selling alcohol are required to
undergo and successfully complete a certified training program in responsible methods
and skills for serving alcohol.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Zoning Administrator of the City of Newport Beach hereby approves Minor Use
Permit No. UP2016-006, 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 (14) days following the date this
Resolution was adopted unless within such time an appeal is filed with the Community
Development Director in accordance with the provisions of Title 20 (Planning and
Zoning), of the Newport Beach Municipal Code,
3. This resolution supersedes Use Permit No. 2010-016 as approved by the Planning
Commission on September 9, 2010, which upon vesting of the rights authorized by this
use permit, shall become null and void.
PASSED, APPROVED, AND ADOPTED THIS 14th DAY OF APRIL, 2016.
BY:
"Wisneskii, 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, floor
plans and building elevations stamped and dated with the date of this approval (except
as modified by applicable conditions of approval).
2. The applicant shall comply with all federal, state, and local laws. Material violation any of
those laws in connection with the use may be cause for revocation of this Minor Use
Permit.
3. The Minor 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 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.
4. Any change in operational characteristics, expansion in area, or other modification to the
approved plans may require an amendment to this Minor Use Permit or the processing of
a new permit.
5. Flours of operation shall be limited to 7:00 a.m, to 10:00 p.m. daily. Any increase in the
hours of operation shall be subject to the approval of an amendment to this Minor Use
Permit or the processing of a new use permit.
6. All mechanical equipment shall be screened from view of adjacent properties and
adjacent public streets in accordance with Newport Beach Municipal Code Section
20.30.020 (Buffering and Screening), and shall be sound attenuated in accordance with
Chapter 10.26 (Community Noise Control).
7. The facility shall comply with the provisions of Chapter 14.30 (Fats, Oils, Grease Control)
for commercial kitchen grease disposal. A grease interceptor shall be installed, unless
otherwise approved by the Building Division. Any changes to the facility or use, including
menu changes or the addition of cooking facilities, that may result in the introduction of
grease or similar byproducts shall be reviewed for conformance with Chapter 14.30 and
may at that time require the installation of a grease interceptor.
8. Kitchen exhaust fans shall be designed to control smoke and odor to the satisfaction of
the Building Division.
9. Should the alcoholic beverage control (ABC) 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 thirty (30) days of transfer of the ABC 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.
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10. The type of alcoholic beverage control license issued by the California Board of Alcoholic
Beverage Control (ABC) 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 approval of
the Zoning Administrator or Planning Commission,
11. The alcoholic beverage sales for the purpose of on-site consumption shall be limited to
the designated dining areas indicated on the floor plan submitted with the application.
Any change in the operation of on-sale alcoholic beverage sales or increase in the dining
area devoted to alcohol sales for customers shall be subject to the approval of an
amendment to this minor use permit issued by the Zoning Administrator.
12. Bar counters for the service of alcoholic beverages only shall be prohibited.
13. The 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 the
operator fails to discourage or correct nuisances, the Zoning Administrator may review,
modify, or revoke this minor conditional use permit in accordance with Chapter 20.96 of
the Zoning Code.
14. 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.
15. 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).
16. 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 sidewalks within twenty (20)feet of the premises.
17. Deliveries and refuse collection for the facility shall be prohibited between the hours of
10:00 p.m. and 8:00 a.m. daily unless otherwise approved by the Director of Community
Development, and may require an amendment to this use permit.
18. No outside paging system shall be utilized in conjunction with this establishment.
19. A Special Events Permit is required for any event or promotional activity outside the
normal operational characteristics of the approved use, as conditioned, or 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.
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20. The site shall not be excessively illuminated based on the luminance recommendations
of the Illuminating Engineering Society of North America, or, if in the opinion of the
Director of Community Development, the illumination creates an unacceptable negative
impact on surrounding land uses or environmental resources. The Director of Community
Development may order the dimming of light sources or other remediation upon finding
that the site is excessively illuminated.
21. The operator of the facility shall be responsible for the control of noise generated by the
subject facility including, but not limited to, noise generated by patrons, food service
operations, and mechanical equipment. 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.
22. All signs shall conform to the provisions of Chapter 20.42 (Signs) of the Municipal Code.
No temporary "sandwich" signs or similar temporary signs shall be permitted, either on-
site or off-site, to advertise the food service eating and drinking establishment.
23. Temporary signs shall be prohibited in the public right-of-way unless otherwise approved
by the Public Works Department in conjunction with the issuance of an encroachment
permit or encroachment agreement.
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. No alcoholic beverages shall be consumed on any property adjacent to the licensed
premises under the control of the license.
26. 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.
27. There shall be no reduced price alcoholic beverage promotions after 9:00 p.m.
28. 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 that are clearly visible to the
exterior shall constitute a violation of this condition.
29. Service and consumption of alcoholic beverages shall be limited to the interior of the food
service eating and drinking establishment. Applicant shall post and maintain a
professional quality sign (clearly visible at front exit) that designates the specific area
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where customers may consume alcoholic beverages. Posted sign shall read "NO
ALCOHOLIC BEVERAGES MAY BE TAKEN BEYOND THIS POINT."
30. The sale of alcoholic beverages for consumption off the premises is strictly prohibited.
31. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food
and retail sales during the same period. The licensee shall maintain records that reflect
separately the gross sale of food and the gross sales of alcoholic 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 City of Newport Beach on demand.
32. Live entertainment and dancing shall be prohibited as a part of the regular operation,
unless an amendment to this use permit or other required application is first approved in
accordance with the provisions of the Municipal Code.
33. A covered wash-out area for refuse containers and kitchen equipment, with minimum
usable dimensions of 36-inches wide and 72-inches high, shall be provided, and the area
shall drain directly into the sewer system, unless otherwise approved by the Building
Official and Public Works Director in conjunction with the approval of an alternate
drainage plan.
34. The use permit is for the operation of full-service, small-scale food service eating and
drinking establishment and does not authorize the use or operation of a bar, tavern,
cocktail lounge, nightclub, or commercial recreational entertainment venue.
35. No background music shall be allowed on any of the outdoor patios, dining areas,
lounges, or waiting areas.
36. Any event or activity staged by an outside promoter or entity, where the applicant,
operator, 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 money
collected as a door charge, cover charge or any other form of admission charge,
including minimum drink orders or sale of drinks is prohibited.
37. Full meal service shall be provided during all hours of operation.
38. The rear doors of the facility shall remain closed at all times. The use of the rear door
shall be limited to deliveries and employee use only. Ingress and egress by patrons is
prohibited unless there is an emergency.
39. All exits shall remain free of obstructions and available for ingress and egress at all
times.
40. Strict adherence to maximum occupancy limits per the California Building Code is
required.
41. All trash shall be stores within a commercial trash bin with a solid lid to screen the trash
and maintain odors. The lid shall be kept closed at all times. The commercial trash bin
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shall be located flush against the rear wall of the residential building and parallel to the
alley to minimize its encroachment into the 10-foot alley setback.
42. Storage outside of the building in the front or at the rear of the property shall be
prohibited, with the exception of the required trash bin specified in Condition No. 41.
43. The project is subject to all applicable City ordinances, policies, and standards, unless
specifically waived or modified by the conditions of approval.
44. A copy of the Resolution, including conditions of approval (Exhibit "A") shall be
incorporated into the Building Division and field sets of plans prior to issuance of the
building permits.
45. The applicant is required to obtain all applicable permits from the City's Building Division
and Fire Department, including for the existing improvements that were constructed
without the benefit of building permits. 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.
46. 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 property owner or the leasing agent.
47. This approval shall expire and become void unless exercised within twenty-four (24)
months from the actual date of review authority approval, except where an extension of
time is approved in compliance with the provisions of Title 20 (Planning and Zoning), of
the Newport Beach Municipal Code.
48. 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 Crocker's Restaurant Expansion including, but not
limited to, Minor Use Permit No. UP2016-006 (PA2016-025). 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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