HomeMy WebLinkAboutZA2020-073 - APPROVING MINOR USE PERMIT NO. UP2020-167 TO ESTABLISH A 925-SQUARE-FOOT RETAIL STORE SPECIALIZING IN WINE SALES WITH ACCESSORY ON-SITE TASTING AT 611 EAST BALBOA BOULEVARD (PA2020-266)RESOLUTION NO. ZA2020-073
A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE
CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING MINOR
USE PERMIT NO. UP2020-167 TO ESTABLISH A 925-SQUARE-
FOOT RETAIL STORE SPECIALIZING IN WINE SALES WITH
ACCESSORY ON-SITE TASTING AT 611 EAST BALBOA
BOULEVARD (PA2020-266)
THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Artisan Uprising LLC (Applicant), with respect to property
located at 611 East Balboa Boulevard; and legally described as Parcel 3 of PM 89-131,
requesting approval of a minor use permit.
2. The Applicant requests a minor use permit to allow the operation of a 925-square-foot retail
store specializing in wine sales and accessory wine tastings (off-sale alcohol). Floor area
dedicated to accessory wine tasting is proposed at 125 square feet and includes eight (8)
seats. The Applicant intends to acquire a Type 02 (Winegrowers) Alcoholic Beverage
Control (ABC) duplicate license. No late hours (after 11:00 p.m.) are proposed as part of
the application.
3. The subject property is designated Mixed-Use Vertical (MU-V) by the General Plan Land
Use Element and is located within the Mixed-Use Vertical (MU-V) Zoning District.
4. The subject property is located within the coastal zone. The Coastal Land Use Plan
category is Mixed-Use Vertical (MU-V) and it is located within the Mixed-Use Vertical (MU-
V) Coastal Zoning District.
5. Although the project is in the coastal zone, it is exempt from the coastal development
permit requirements. The project does not meet the definition of “development” pursuant
to Newport Beach Municipal Code (NBMC) Section 21.52.035.2 (Other Existing
Structures). There are no improvements to the structure that result in changes in floor
area, increased parking demand, or otherwise change the general level of activity in the
area.
6. A public hearing was held online on November 12, 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 NBMC. Evidence, both written and oral, was presented to, and considered by,
the Zoning Administrator at this hearing.
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SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
This project is exempt from the California Environmental Quality Act (CEQA) pursuant to
categorically exempt under Sections 15301 and 15303 under Class 1 (Existing Facilities) and
Class 3 (New Construction or Conversion of Small Structures), respectively, of the State CEQA
(California Environmental Quality Act) Guidelines.
Class 1 exempts the operation of an existing private structure involving negligible or no
expansion of use beyond that existing at the time of the lead agency’s determination. Class 3
exempts the conversion of existing small structures from one use to another up to 2,500 square
feet. The proposed project consists of 925-square foot retail wine store within an existing
nonresidential suite and results in negligible or no expansion of the use.
The exceptions to the Class 3 categorical exemption under Section 15300.2 are not applicable.
The project location does not impact an environmental resource of hazardous or critical
concern, does not result in cumulative impacts, does not have a significant effect on the
environment due to unusual circumstances, does not damage scenic resources within a state
scenic highway, is not a hazardous waste site, and is not identified as a historical resource.
SECTION 3. REQUIRED FINDINGS.
Alcohol Sales (Off-Sale)
In accordance with Section 20.48.030 (Alcohol Sales) of the Newport Beach Municipal Code,
the following findings and facts in support of the findings for a use permit are set forth:
Finding
A. The use is consistent with the purpose and intent of Section 20.48.030 (Alcohol Sales) of
the Zoning Code.
Facts in Support of Finding
In finding that the proposed use is consistent with Section 20.48.030 (Alcohol Sales) of the
Zoning Code, the following criteria must be considered:
i. The crime rate in the reporting district and adjacent reporting districts as compared to
other areas in the City.
1. The proposed retail store is located within Reporting District 12 (RD 12), which
stretches from 9th Street to G Street along the Balboa Peninsula. The standard in
which ABC utilizes to identify a high crime area is outlined in Business and
Professions Code §23958.4. A reporting district is classified as having "undue
concentration" when there is 20% higher crime count (with an alcohol nexus) as
compared to the City-wide average. The 2019 crime count in RD 12 is 151, 9% over
the City-wide average for reported crimes and does not meet the threshold for undue
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concentration. In 2019, eleven (11) reporting districts were reported to ABC as high
crime areas per their standards. RD 12 was not one of them.
ii. The number of alcohol-related calls for service, crimes, or arrests in the reporting
district and in adjacent reporting districts.
1. In 2019, there were 93 arrests in RD 12. Of those, 41% were for public into xication,
DUI, or liquor law violations. In comparison, the figures for neighboring RD 11 is
29%, RD 13 is 33%, and RD 15 is 39%. The highest volume crime in the area is
bicycle theft. The highest volume arrest in RD 12 are drug -related offenses. The
Newport Beach Police Department (NBPD) has reviewed the proposed operation
and did not have any concerns when specified conditions of approval are
incorporated. All requested conditions of approval are attached as Exhibit “A.”
iii. The proximity of the establishment to residential zoning districts, day care centers,
hospitals, park and recreation facilities, places of worship, schools, other similar uses,
and any uses that attract minors.
1. Although the property has a close proximity of around 100 feet to the public boardwalk
and Peninsula Park, the tenant space itself is oriented towards East Balboa Boulevard
and away from the boardwalk. This orientation provides screening and protection
from view and other potential disturbances. Residential uses surround this area of
Balboa Village and the subject building is located within an existing mixed-use
corridor, which includes residential and nonresidential uses. The earlier closing hour
and the conditions of approval required for the operation will help to ensure there are
no negative impacts on the more sensitive land uses nearby.
2. The proposed use is not located in close proximity to known day care centers, places
of religious assembly, or schools.
iv. The proximity to other establishments selling alcoholic beverages for either off-site or
on-site consumption.
1. The Applicant’s premise is located within census tract 628.00. This census tract has an
approximate population of 4220 residents with 38 active retail licenses, a per capita
ratio of one license for every 111 residents. Per Business and Professions Code
§23958.4, this per capita ratio is compared to Orange County's per capita ratio of one
retail license for every 519 residents. Since the area's ratio exceeds the ratio of retail
licenses to population in the county, the area is deemed to have an undue
concentration of alcohol licenses. There are no other non-retail licenses in census tract
628.00. There are five Type 02 (Winegrower) licenses and 29 total non-retail licenses
in Newport Beach. There are 32 Type 02 licenses and 494 non-retail licenses in Orange
County.
2. Due to the intended use description, license type, the small size of the space, the
limited tasting area, no late hours, and the Applicant's ABC record, the NBPD does
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not have any concerns with this project. As proposed, this location should not create
an increased burden on police resources.
v. Whether or not the proposed amendment will resolve any current objectionable
conditions
1. This is a new retail wine establishment; therefore, no objectionable conditions exist.
Minor Use Permit
In accordance with Section 20.52.020.F (Findings and Decision) of the NBMC, the following
findings and facts in support of the findings for a use permit are set forth:
Finding
B. The use is consistent with the General Plan and any applicable specific plan.
Facts in Support of Finding
1. The proposed project is a retail store specializing in wine (Alcohol Sales, Off-sale)
and accessory wine tasting to be located within an existing, mixed-use building of
Balboa Village.
2. The General Plan land use designation for this site is Mixed-Use Vertical (MU-V),
which is intended to provide for areas appropriate for the development of mixed-
use structures that vertically integrate residential dwelling units above the ground
floor with retail uses including office, restaurant, retail, and similar nonresidential
uses located on the ground floor or above.
3. The proposed retail store is consistent with the Mixed-Use Vertical (MU-V) Land
Use designation, as it will operate within an existing ground-floor retail suite of a
mixed-use building.
4. The proposed project will not interfere or otherwise impact existing coastal-
dependent uses in the vicinity.
5. 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.
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Facts in Support of Finding
1. The proposed use complies with Section 20.48.030 (Alcohol Sales) of the NBMC
relating to required operating standards, and conditions of approval are included
in this approval to maintain those requirements.
2. Demand of parking will decrease with the proposed retail wine store. According
to the off-street parking standards of NBMC Table 3-10 (Section 20.40.040), an
off-sales use requires one space per 250 square feet of gross floor building area
or four (4) spaces (925 gross sq. ft. / 250 sq. ft. = 4 spaces). For the existing
vehicle rental (limited) use, the requirement is one (1) space per 300 square feet,
plus 1 per rental vehicle (925 sq. ft. / 300 sq. ft. + 1 vehicle = 5). Since the existing
business has vacated the suite, the number of rental vehicles p art of their
operation is unknown. However, even the most conservative estimate assuming
one rental vehicle suggests the retail wine store would, in fact, reduce overall
parking demand by one (1) space. As a result, there is no additional parking
requirement and no intensification of use generated by the project.
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 proposed project involves the establishment of a 925-square-foot retail wine
store with an on-site, 125-square-foot accessory tasting area. The operational
characteristics of the use are that of a retail store, which is compatible with the
uses within Balboa Village which currently include retail and service commercial
for various businesses such as a nail salon, retail clothing store, real estate office,
restaurants, barber shop, and art studio.
2 The retail store and related accessory tasting have been limited by the conditions
of approval to prevent late hour operations and are restricted to the hours between
10 a.m. and 10 p.m., daily. No wine tastings will be poured past 9 p.m.
3. See Fact in Support of Finding A.iii.1.
4. The Applicant is required to obtain Health Department approval prior to opening for
business, and comply with the California Building Code to ensure the safety and
welfare of customers and employees within the establishment.
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.
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Facts in Support of Finding
1. The subject mixed-use building has existed since the late 1980s. The proposed
retail wine establishment will operate in an existing nonresidential suite and will
not negatively affect emergency access.
2. Adequate public and emergency vehicle access, public services, and utilities are
provided on-site and are accessed by way of the alley directly behind the site.
The site is also accessible from East Balboa Boulevard.
3. The tenant improvements to the project site will comply with all Building, Public
Works, and Fire Codes. All ordinances of the City and all conditions of approval
will be complied with.
Finding
F. Operation of the use at the location proposed would not be detrimental to the harmonious
and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard
to the public convenience, health, interest, a safety, or general welfare of persons residing
or working in the neighborhood of the proposed use.
Facts in Support of Finding
1. The project has been reviewed and this approval includes conditions to ensure that
potential conflicts with the surrounding land uses are minimized to the greatest
extent possible. The operator is required to take reasonable steps to discourage
and correct objectionable conditions that constitute a nuisance in parking areas,
sidewalks, and areas surrounding the subject property and adjacent properties
during business hours, if directly related to the patrons of the retail store.
2 The restrictions on the hours and wine tasting operation will help prevent adverse
pedestrian and traffic impacts for the surrounding residential and commercial uses.
3. The proposed retail store and on-site, accessory tasting area will help revitalize
the project site and will provide an economic opportunity for the property owner
to update the tenant space and provide additional services to the visitors and
residents in the surrounding area.
4. All owners, managers, and employees selling or serving wine will be required to
complete a Responsible Beverage Service certification program.
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SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Zoning Administrator of the City of Newport Beach hereby finds this project exempt
from the California Environmental Quality Act (CEQA) pursuant to categorically exempt
under Sections 15301 and 15303 under Class 1 (Existing Facilities) and Class 3 (New
Construction or Conversion of Small Structures), respectively, of the State CEQA
(California Environmental Quality Act) Guidelines, 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. UP2020-167, 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 12th DAY OF NOVEMBER, 2020.
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EXHIBIT “A”
CONDITIONS OF APPROVAL
PLANNING
1. The development shall be in substantial conformance with the approved site plan and floor
plan(s) dated with this date of approval. (Except as modified by applicable conditions of
approval.)
2. No portion of the licensed premises shall be maintained for the sole purpose of sale or
service of alcoholic beverages directly to patrons for on-site consumption.
3. The subject alcoholic beverage license shall not be exchanged for a public premises
type license nor operated as a public premise.
4. The wine tasting area shall not operate as a bona fide eating establishment, but may
serve incidental snacks such as bread, crackers, or cheeses. No kitchen or food
preparation area shall be provided on the premises.
5. This 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.
6. The use of any amplifying systems, outdoor sound system or any other such device is
prohibited on the licensed premises.
7. Any change in operational characteristics, hours of operation, 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 use permit.
8. Minor Use Permit No. UP2020-167 shall expire unless exercised within twelve (12) months
from the date of approval as specified in Section 20.48.030 (Alcohol Sales) of NBMC,
unless the California Department of Alcoholic Beverage Control issues or transfers the
ABC license before the permit expiration date.
9. Minor Use Permit No. UP2020-167 shall expire shall expire if the alcohol sales use is
discontinued for ninety (90) consecutive days or if the ABC license for the establishment
is revoked or transferred to a different location.
10. Prior to operation of the establishment, the Applicant shall acquire a business license with
the City’s Revenue Division.
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11. Should this business be sold or otherwise come under different ownership, any future
owners or assignees shall be notified in writing of the conditions of this approval by the
current owner or leasing company.
12. Outdoor storage of boxes, equipment, materials, merchandise, and other similar items
shall be prohibited.
13. The project is subject to all applicable City ordinances, policies, and standards, unless
specifically waived or modified by the conditions of approval.
14. 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 Use
Permit.
15. There shall be no dancing and/or live entertainment allowed on the premises.
16. A copy of this resolution shall be incorporated into the Building Division and field sets of
plans prior to issuance of the building permits.
17. The Alcoholic Beverage Control (ABC) License shall be limited to a Type 02
(Winegrower), or comparable license. Any substantial change in the ABC License type
shall require subsequent review and potential amendment to this minor use permit.
18. The tasting area shall be limited to 125 square feet and eight (8) seats as depicted on the
project plans of this approval. No tastings shall be conducted outside of this designated
area.
19. Tastings are limited to those allowed under a Type 02 (Winegrower) Alcoholic Beverage
Control License only. Pours shall be limited to two (2) ounces each. Customers shall not
be permitted to drink bottles of purchased wine in the store and no wine tasting should take
place on public property.
20. The hours of operation for the retail wine store are limited from 10 a.m. to 10 p.m., daily.
No wine tastings shall be poured past 9 p.m. No customer shall be in the store past 10
p.m.
21. All proposed signs shall conform to Title 20, Chapter 20.42 (Sign Standards) of the
NBMC regulations or any sign program applicable to the property. Approved window
signs shall not obstruct the view of the interior of the premises (e.g., sales counter, cash
register, employees, customers, etc.) from the exterior.
22. 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.
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23. Deliveries and refuse collection for the facility shall be prohibited between the hours of
10 p.m. and 8 a.m., daily, unless otherwise approved by the Community Development
Director, and may require an amendment to this Use Permit.
24. 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 Balboa Wine including, but not limited to, Minor Use Permit No. UP2020-167
(PA2020-266). This indemnification shall include, but not be limited to, damages awarded
against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in
connection with such claim, action, causes of action, suit or proceeding whether incurred
by Applicant, City, and/or the parties initiating or bringing such proceeding. The Applicant
shall indemnify the City for all of City's costs, attorneys' fees, and damages which City
incurs in enforcing the indemnification provisions set forth in this condition. The Applicant
shall pay to the City upon demand any amount owed to the City pursuant to the
indemnification requirements prescribed in this condition.
Building Division Conditions
25. Approval from the Orange County Health Department is required prior to the issuance of
a building permit.
26. The Applicant shall ensure a minimum 36 inches wide circulation path and aisle are
provided at all times.
27. Project plans shall demonstrate compliance with disabled access requirements.
Police Department Conditions
28. Approval does not permit the premises to operate as a bar, tavern, cocktail lounge or
nightclub as defined by the Newport Beach Municipal Code.
29. No alcoholic beverages shall be consumed on any property adjacent to the licensed
premises under the control of the licensee.
30. No games or contests requiring or involving the consumption of alcoholic beverages shall
be allowed.
31. The exterior of the business shall be maintained free of litter and graffiti at all times. The
owner or operator shall provide for daily removal of trash, litter, and debris from the
premises and on all abutting sidewalks within 20 feet of the premises. Graffiti shall be
removed within 48 hours of written notice from the City.
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32. 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.
33. Strict adherence to maximum occupancy limits is required.
34. The applicant shall maintain a security recording system with a 30-day retention, and make
those recordings available to the Police Department upon request.
35. The operator of the retail facility shall be responsible for the control of noise generated by
the subject facility. All noise generated by the proposed use shall comply with the
provisions of Section 20.30.080 (Noise) Chapter 10.26 (Community Noise Control) and
other applicable noise control requirements of the Newport Beach Municipal Code.
36. 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 within 60 days of hire. This training must be updated every 3
years regardless of certificate expiration date. The certified program must meet the
standards of the certifying/licensing body designated by the State of California. The
establishment shall comply with the requirements of this section within 60 days of approval.
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