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HomeMy WebLinkAboutZA2020-063 - APPROVING MINOR USE PERMIT NO. UP2019-057 TO ALLOW MASSAGE AND PERSONAL SERVICES, RESTRICTED LAND USES WITHIN AN EXISTING MULTI-TENANT COMMERCIAL BUILDING LOCATED AT 4463 BIRCH STREET (PA2019-261)RESOLUTION NO. ZA2020-063 A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH, CALIFORNIA APPROVING MINOR USE PERMIT NO. UP2019-057 TO ALLOW MASSAGE AND PERSONAL SERVICES, RESTRICTED LAND USES WITHIN AN EXISTING MULTI-TENANT COMMERCIAL BUILDING LOCATED AT 4463 BIRCH STREET (PA2019-261) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Hong Lien Pham (Applicant), with respect to property located at 4463 Birch Street and legally described as Lot 11 of Tract No. 5169 requesting approval of a minor use permit. 2. The Applicant requests a minor use permit to allow the operation of massage and personal services, restricted land uses, including day spas and healing arts (e.g., acupuncture) within an existing 11,420-square-foot commercial building. A waiver of location restrictions is requested to allow the proposed massage use(s) within 500 feet of other massage uses. No alcohol sales or late hours are proposed as part of this application. 3. The subject property is designated AO (Airport Office and Supporting Uses) by the General Plan Land Use Element and is located within the OA (Office Airport) Zoning District. 4. The subject property is not located within the coastal zone; therefore, a coastal development permit is not required. 5. A public hearing was held online on September 24, 2020, observing restrictions due to the Declaration of a State Emergency and Proclamation of Local Emergency related to COVID-19. A notice of time, place and purpose of the hearing 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 hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This project is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. 2. The proposed project includes the conversion of an existing medical and professional office building to various personal services, massage, and other uses. No exterior construction is proposed. Zoning Administrator Resolution No. ZA2020-063 Page 2 of 11 01-25-19 SECTION 3. REQUIRED FINDINGS. Minor Use Permit In accordance with Section 20.52.020(F) (Conditional Use Permits and Minor Use Permits) of the Newport Beach Municipal Code (NBMC), the following findings and facts in support of such findings are set forth: Finding: A. The use is consistent with the General Plan and any applicable specific plan. Facts in Support of Finding: 1. The property is designated Airport Office and Supporting Uses (AO) in the Land Use Element of the General Plan. This designation is intended to provide for the development of properties adjoining the John Wayne Airport for uses that support or benefit from airport operations. These may include professional offices, aviation uses, and ancillary retail, restaurant, and service uses. 2. The proposed personal services, restricted and massage uses are consistent with the AO designation, as they will provide services that support the surrounding commercial uses and the region at large. The proposed wellness building could serve and complement the nearby John Wayne Airport and the surrounding business community, as visitors and employees would be able to conveniently access the massage, acupuncture, or day spa services prior to or after a flight. 3. The subject property is not part of a specific plan area. Finding: B. The use is allowed within the applicable zoning district and complies with all other applicable provisions of the Zoning Code and Municipal Code. Facts in Support of Finding: 1. The subject property is in the Office Airport Zoning District, which is intended to provide for uses that support or benefit from airport operations. These may include corporate and professional offices, accessory retail, restaurant, service uses, etc. The proposed uses are considered service uses and are therefore consistent with the intent of the land use designation. 2. Pursuant to Table 2-4 of Section 20.22.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the NBMC, both personal services, restricted uses (acupuncture, healing arts, etc.) and massage uses are personal services uses that may be permitted in the OA Zoning District subject to the approval of a minor use permit (MUP). Zoning Administrator Resolution No. ZA2020-063 Page 3 of 11 01-25-19 3. The existing medical and professional office building was constructed in the 1960s and does not comply with the current parking requirements of the NBMC. However, the proposed uses would not result in an intensification or increase in the degree of nonconformity. Further, evidence exists to support that the proposed use will ultimately result in a similar parking demand to the prior professional office and medical office uses. Conditions of approval are included to maintain adequate parking on-site (Condition of Approval Nos. 2 and 4). 4. The proposed massage use is consistent with the legislative intent of Section 20.48.120 (Massage Establishments and Services) and Chapter 5.50 (Massage Establishments) of the NBMC. These sections provide standards for the establishment, location, and operation of massage establishments operated as an independent use. The intent is to promote the operation of legitimate massage services and to prevent problems of blight and deterioration that may accompany and result from large numbers of massage establishments. The project includes flexibility to provide massage in conjunction with other uses (e.g. acupuncture, physical therapy) or as a standalone business. 5. The Newport Beach Police Department (NBPD) has reviewed the project and finds the various scenarios to be acceptable subject to standard conditions of approval. Any potential massage establishment operator will be required to obtain an Operator’s Permit from the NBPD. Finding: C. 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. As proposed, potential massage operations may operate within the two main suites on the second floor. The operation may consist of up to six (6) potential massage rooms, a customer waiting area, and an equipment/laundry area in the wellness center. There would also be an accessory massage room for the acupuncturist suite. Condition of Approval No. 4 is included to limit massage uses to no more than 50 percent of the existing commercial building. 2. Condition of Approval No. 3 limits personal services, restricted uses, such as acupuncture and day spa, to no more than 75 percent of the building, subject to parking and building code requirements. The limit of 75 percent of the overall building square footage is intended to reduce the potential for blight in the airport area and allow for other complementary uses such as hair salons and makeup businesses. 3. The typical hours of operation for the various personal services restricted and massage uses will be from 8 a.m. to 8 p.m. The neighboring uses consist of offices, the Hyatt Hotel, and Enterprise Vehicle Rentals. The project’s proposed hours of Zoning Administrator Resolution No. ZA2020-063 Page 4 of 11 01-25-19 operation are compatible with the allowed uses in the vicinity, as there will not be any late hours which would contribute to noise in the area. 4. The project site and surrounding area consist of a mixture of professional offices, a hotel, car rental services, as well as service uses that serve residents and visitors in the surrounding area. The proposed massage and personal services uses will provide a service that supports residents, local employees, and visitors, consistent with the existing uses in the area. Finding: D. 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 subject property is located near the intersection of Birch Street and Mac Arthur Boulevard, and the southern boundary of John Wayne Airport. The property is developed with a two-story, multi-tenant commercial building. The building has historically been occupied by medical offices and professional offices that serve the area. The site is accessible by a driveway on Birch Street. The 45 -space surface parking lot that surrounds the building is conveniently located on -site for use of patrons and employees. 2. The two-story, 11,420-square-foot office building was originally constructed in 1969. In 1996, the first floor was converted to medical office uses. The second floor was vacant at the time of conversion, but was intended for office uses. The building was considered nonconforming at the time, as only 42 parking spaces were provided. The Zoning Code in effect at the time required 46 spaces at a rate of one space per 250 square feet of net floor area. 3. In 2005, a Zoning Code amendment (City Council Ordinance No. 2005-1) increased the parking requirement for medical office uses from one space per 250 net square feet to one space per 200 gross square feet of floor area, increasing the parking nonconformity. Therefore, the existing first-floor medical uses are nonconforming and the second-floor office uses remain nonconforming as well. Since 1996, three additional parking spaces have been constructed to reduce the degree of nonconformity, resulting in 45 parking spaces. The existing 6,181 square feet of medical uses on the first floor are still considered nonconforming under the current NBMC. 4. The proposed project will include a variety of uses with different parking requirements. Proposed uses such as medical or massage that have the same rate as the existing medical use can occupy the building (i.e., “like-for-like”), to match the existing nonconforming medical use and maintain the same level of parking demand on the site. The existing nonconforming building includes a total of 6,181 square feet Zoning Administrator Resolution No. ZA2020-063 Page 5 of 11 01-25-19 of medical on the first floor. Accordingly, up to 6,181 gross square feet can be occupied with uses that require a rate of one space per 200 square feet. 5. The existing 45 parking spaces have been adequate to accommodate parking demand for patrons and employees of the multi -tenant building. The proposed allowance for massage and personal services restricted uses are not anticipated to result in an intensification of use and will not require the provision of additional parking. Conditions of approval are included to ensure that the future buildout of the various tenant spaces will not result in over 6,181 square feet of uses that require a parking rate of one space per 200 square feet of floor area (i.e. the same as the existing medical use). The remaining tenant spaces shall be occupied with uses that require a lower parking rate of one space per 250 square feet of floor area or less (e.g., one space per 300 sf). 6. Adequate public and emergency vehicle access, public services, and utilities are provided on the property and the proposed massage establishment and personal services uses will not change this. Finding: E. Operation of the use at the location proposed would not be detrimental to the harmoni ous 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 uses have been conditioned with typical daytime hours of operation that will minimize any potential detriment to the area . Condition of Approval No. 5 restricts hours of operation to 8 a.m. to 8 p.m., daily. 2. The proposed massage and personal service uses would provide additional services to the residents and visitors in the surrounding area. 3. The proposal has been reviewed by the Building and Code Enforcement Divisions, Public Works, Fire, and Police Departments, and recommended conditions of approval have been included to limit any effects to the City or persons visiting or working in the surrounding neighborhood. Waiver of Location Restrictions In accordance with Section 20.48.120(B) (Massage Establishments and Services – Waiver of Location Restrictions) of the NBMC, the following findings and facts in support of such findings are set forth: Zoning Administrator Resolution No. ZA2020-063 Page 6 of 11 01-25-19 Finding: F. The proposed use will not be contrary to the public interest or injurious to nearby properties, and that the spirit and intent of this section will be observed. Facts in Support of Finding: 1. The intent of the section is to promote the operation of legitim ate massage services and to prevent problems of blight and deterioration, which accompany and are brought about by large numbers of massage establishments that may act as fronts for prostitution and other illegal activity. 2. Although the proposed massage use is located within 500 feet of another establishment offering massage services, it is located in a separate development and is sufficiently separated from other massage services , the closest of which are located at the Hyatt Hotel approximately 260 feet f rom the subject site. Additionally, the proposed project may include multiple tenant suites offering massage services within the same commercial building. The Police Department has reviewed the proposal and does not have concerns regarding the proposal of multiple massage establishments subject to Condition of Approval Nos. 32 through 35. Similarly, the Code Enforcement Division has reviewed the proposed uses and provided Condition of Approval Nos 30 and 31 to provide additional transparency to the businesses. 3. There will be no late hours of operation, as the proposed hours , as conditioned are 8 a.m. to 8 p.m., seven (7) days a week. The massage use is complementary to the other wellness related uses in the building. 4. Condition of Approval No. 33 is included to ensure the Applicant will obtain an Operator’s Permit from the Newport Beach Police Department in compliance with Chapter 5.50 (Massage Establishments) of the Newport Beach Municipal Code prior to operation of the business. Finding: G. The proposed use will not enlarge or encourage the development of an urban blight area. Fact in Support of Finding: 1. The proposed massage uses are located in individual tenant spaces within a managed, multi-tenant commercial building, which will prevent problems and discourage the development of blight. The subject property is not located within a blighted area, is well maintained, and is intended to provide a service that supports the surrounding residents and visitors to Newport Beach. Additionally, there are no existing residential uses within the surrounding area. Lastly, the owner completed site work in 2014 to improve the parking lot, trash enclosure, and update the appearance of the building exterior. Zoning Administrator Resolution No. ZA2020-063 Page 7 of 11 01-25-19 Finding: H. The proposed use will not adversely affect a religious institution, school, park, or playground. Facts in Support of Finding: 1. The proposed use is located adjacent to John Wayne Airport and surrounding commercial uses. There are no public or private schools, playgrounds, or religious institutions within 500 feet of the subject property. 2. The subject property has adequate lighting and is visible from Birch Street. 3. The NBPD has reviewed the request for a waiver of location restrictions and has no concerns regarding the proposed massage operation. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Zoning Administrator of the City of Newport Beach hereby finds this project is categorically exempt from the California Environmental Quality Act pursuant to Section 15101 under Class 1 (Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. 2. The Zoning Administrator of the City of Newport Beach hereby approves Minor Use Permit No. UP2019-057 subject to the conditions set forth in Exhibit “A,” which is attached hereto and incorporated by reference. 3. This action shall become final and effective 14 days following the date this Resolution was adopted unless within such time an appeal or call for review is filed with the Community Development Director in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED, AND ADOPTED THIS 24TH DAY OF SEPTEMBER, 2020. Zoning Administrator Resolution No. ZA2020-063 Page 8 of 11 01-25-19 EXHIBIT “A” CONDITIONS OF APPROVAL Planning Division 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 amount of land uses that require a parking rate of one space per 200 square feet of floor area shall not exceed 6,181 square feet in aggregate. The uses may be located on the first or second floor subject to the requirements of the California Building Code (CBC). 3. The amount of personal services restricted land uses shall not exceed 75 percent of the existing building square footage, or approximately 8,565 square feet. 4. The amount of massage services or establishments shall not exceed 50 percent of the existing building square footage, or approximately 5,710 square feet. 5. Hour of operation for the massage and personal services restricted land uses shall be limited to the hours of 8 a.m. and 8 p.m., daily. 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 vi olation of any of those laws in connection with the use may be cause for revocation of this Use Permit. 8. All proposed signs shall be in conformance the provisions of Chapter 20.42 (Signs) of the Newport Beach Municipal Code. 9. Use Permit No. UP2019-057 shall expire unless exercised within 24 months from the date of approval as specified in Section 20.54.060 of the NBMC, unless an extension is otherwise granted. 10. This 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. 11. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require subsequent review by the Planning Division and may require an amendment to this Use Permit or the processing of a new Use Permit. Zoning Administrator Resolution No. ZA2020-063 Page 9 of 11 01-25-19 12. 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. 13. All landscape materials and irrigation systems shall be maintained in accordance with the approved landscape plan. All landscaped areas shall be maintained in a healthy and growing condition and shall receive regular pruning, fertilizing, mowing and trimming. All landscaped areas shall be kept free of weeds and debris. All irrigation systems shall be kept operable, including adjustments, replacements, repairs, and cleaning as part of regular maintenance. 14. 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 may order the dimming of light sources or other remediation upon finding that the site is excessively illuminated. 15. Prior to the issuance of a building permit, the Applicant shall pay any unpaid administrative costs associated with the processing of this application to the Planning Division. 16. All noise generated by the proposed use shall comply with the provisions of Cha pter 10.26 and other applicable noise control requirements of the NBMC. The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher: Between the hours of 7 AM and 10 PM Between the hours of 10 PM and 7 AM Location Interior Exterior Interior Exterior Residential Property 45dBA 55dBA 40dBA 50dBA Residential Property located within 100 feet of a commercial property 45dBA 60dBA 45dBA 50dBA Mixed Use Property 45dBA 60dBA 45dBA 50dBA Commercial Property N/A 65dBA N/A 60dBA 17. 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 business owner, property owner or the leasing agent. 18. Construction activities shall comply with Section 10.28.040 of the NBMC, which restricts hours of noise-generating construction activities that produce noise to between the hours of 7 a.m. and 6:30 p.m., Monday through Friday, and 8 a.m. and 6 p.m. on Saturday. Noise-generating construction activities are not allowed on Sundays or Holidays. Zoning Administrator Resolution No. ZA2020-063 Page 10 of 11 01-25-19 19. All trash shall be stored within the building or within dumpsters stored in the existing 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. 20. Trash receptacles for patrons shall be conveniently located both inside and o utside of the establishment, however, not located on or within any public property or right-of-way. 21. 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 20 feet of the premises. 22. 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). 23. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10 p.m. and 7 a.m. on weekdays and Saturdays and between the hours of 10 p.m. and 9 a.m. on Sundays and Federal holidays, unless otherwise approved by the Director of Community Development, and may require an amendment to this Use Permit . 24. 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 container enclosure. 25. 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 NBMC to require such permits. 26. 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 Pham Wellness Building including, but not limited to, Minor Use Permit No. UP2019-057 (PA2019-261). 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. Zoning Administrator Resolution No. ZA2020-063 Page 11 of 11 01-25-19 Building Division 27. 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 CBC. The construction plans must meet all applicable State Disabilities Access requirements. 28. The second floor shall provide access to two exits without going through intervening rooms or other tenant spaces. Plans shall comply with CBC 1016.2. 29. Provide accessible means of egress in accordance with CBC 1009. Condition Nos. 30-35 only apply to massage uses: Code Enforcement Division 30. All windows (except treatment room windows) shall remain visible and transparent. Window signage shall comply with the NBMC. 31. The name of employees and State Certifications shall be provided to City staff upon request. Police Department 32. Strict adherence to the NBMC Chapter 5.50 shall be required. 33. The individual businesses must apply for and obtain an Operator’s Permit from the Chief of Police and keep said permit in good standing. 34. All employees of the Applicant’s business who conduct massages must be certified by the CAMTC (physicians, physical therapists, and chiropractors exempt). 35. As outlined in the NBMC Section 5.50.030, the business shall maintain the requirements of operation and submit to inspections by officers of the Police Department.