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HomeMy WebLinkAboutZA2021-069 - APPROVING LIMITED TERM PERMIT NO. XP2021-031 AND COASTAL DEVELOPMENT PERMIT NO. CD2021-060 TO ALLOW AN EXPANDED OUTDOOR DINING AREA LOCATED AT 3334 WEST COAST HIGHWAY (PA2021-228)RESOLUTION NO. ZA2021-069 A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH, CALIFORNIA APPROVING LIMITED TERM PERMIT NO. XP2021-031 AND COASTAL DEVELOPMENT PERMIT NO. CD2021-060 TO ALLOW AN EXPANDED OUTDOOR DINING AREA LOCATED AT 3334 WEST COAST HIGHWAY (PA2021-228) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Jordan Otterbein, representing A Restaurant, with respect to property located at 3334 West Coast Highway, and legally described as a portion of Block 1 of Irvine’s Subdivision, requesting approval of a limited term permit and a coastal development permit. 2. A request for a limited term and coastal development permit to allow a 1,000-square-foot maximum expanded dining area for up to a one (1)-year term. An expanded outdoor dining area was previously requested via Emergency Temporary Use Permit No. UP2020-016 (PA2020-087) for A Restaurant and the size and location of the expanded dining patio has been modified under this request. 3. The subject property is designated CG (General Commercial) by the General Plan Land Use Element and is located within the CG (Commercial General) Zoning District. 4. The subject property is located within the coastal zone. The Coastal Land Use Plan category is CG-B (General Commercial – 0.0 - 0.75 FAR) and it is located within the CG (Commercial General) Coastal Zoning District. 5. A public hearing was held on November 10, 2021, online via Zoom. A notice of time, place and purpose of the hearing was given in accordance with the Newport Beach Municipal Code (NBMC). 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) and Section 15303 under Class 3 (New Construction or Conversion of Small Structures) 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 Class 1 exemption includes the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use. The Zoning Administrator Resolution No. ZA2021-069 Page 2 of 12 09-30-21 Class 3 exemption includes a store, motel, office, restaurant, or similar structure not involving the use of significant amounts of hazardous substances, not exceeding 2,500 square feet in floor area or 10,000 square feet in floor area in urbanized areas zoned for such use. The proposed scope of work is a maximum 1,000-square-foot expanded outdoor dining patio at an existing restaurant for up to a one (1)-year limited term and qualifies under the parameters of the Class 1 and Class 3 exemptions. 3. The exceptions to this 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. Limited Term Permit In accordance with Section 20.52.040.G (Limited Term Permits, Findings and Decision) of the Newport Beach Municipal Code, the following findings and facts in support of such findings are set forth: Finding: A. The operation of the limited duration use at the location proposed and within the time period specified 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 requested limited duration use; Facts in Support of Finding: 1. The limited term permit will allow an extended and expanded outdoor dining patio for up to a one (1)-year term while the City reconsiders its parking requirements related to food service uses. The existing food service use, A Restaurant, was established prior to the requirement for a use permit in the City and the existing outdoor dining patio was authorized through OD2008-004 (PA2008-145) in 2008. 2. The expanded dining area has not posed a hazard to the general welfare of persons residing in the area since it was placed during the COVID-19 pandemic in 2020. The operation of the expanded dining area is limited to up to a one (1)-year beginning January 1, 2022, through December 31, 2022, and has been reviewed and conditioned to preclude any detriment to the general welfare of the area. 3. Outdoor dining areas are common within the Mariners’ Mile corridor, have been used at the subject property during similar hours in the past, and the use has not proven detrimental. The existing hours of operation for the interior of the restaurant are not limited Zoning Administrator Resolution No. ZA2021-069 Page 3 of 12 09-30-21 by a use permit. The hours of operation for the existing outdoor dining patio are limited from 11:00 a.m. through 10:00 p.m., daily. The expanded outdoor dining area will close by 9:00 p.m., daily. 4. The expanded outdoor dining area will include a covered tent area. The size of the tent area will require a building permit and Fire Marshall tag in order to confirm proper safety, anchoring, and fire safety to continue operation in this location in accordance with Condition of Approval Nos. 17 and 28. 5. The proposed operation is conditioned to be accessible to all persons, including those with disabilities, in accordance with the Americans with Disabilities Act (ADA). 6. The permitted use shall adhere to applicable State of California and Orange County Health Care Agency guidelines for the safe operation of the use. It is the responsibility of the permittee to implement and follow industry-specific guidance of the State of California and the Orange County Health Care Agency guidelines. 7. The permitted use must be operated in compliance with applicable State Department of Alcoholic Beverage Control (ABC) requirements. 8. The overall plan includes appropriate delineation of outdoor use spaces with physical barriers or markers. 9. The expanded dining area will not impede pedestrian access to the waterfront. Finding: B. The subject lot is adequate in size and shape to accommodate the limited duration use without material detriment to the use and enjoyment of other properties located adjacent to and in the vicinity of the lot; Facts in Support of Finding: 1. The subject lot is approximately 0.76 acres in size and is a generally flat property. The existing food service use with outdoor dining has operated at this location prior to the requirement for a use permit. Based upon the site plan, there is adequate area to accommodate the expanded dining area without impacting vehicles, pedestrian circulation, or coastal access. 2. The lot is bounded by West Coast Highway to the south, Old Newport Boulevard to the west, Santa Ana Avenue to the north, and a commercial property to the east. An existing food service use with outdoor dining is located at this site. The expanded outdoor dining use will not impede use and enjoyment of the properties in the area and to date, the City has not received any complaints regarding the operation of the expanded dining at this site. Zoning Administrator Resolution No. ZA2021-069 Page 4 of 12 09-30-21 4. The expanded dining area will not impede any parking spaces. No traffic or site circulation issues are anticipated. Finding: C. The subject lot is adequately served by streets or highways having sufficient width and improvements to accommodate the kind and quantity of traffic that the limited duration use would or could reasonably be expected to generate; Facts in Support of Finding: 1. The subject lot is accessed from West Coast Highway. A surface parking lot is located on- site, serving A Restaurant and A Market. 2. The number of parking spaces is currently nonconforming to the code required parking since A Restaurant was established prior to the requirement for a use permit. Traffic issues and parking demand issues are not anticipated with the continued use of a 1,000-square- foot expanded dining area. To date, no complaints have been received regarding the operation of this expanded dining area. Finding: D. Adequate temporary parking to accommodate vehicular traffic to be generated by the limited duration use would be available either on-site or at alternate locations acceptable to the Zoning Administrator; and Facts in Support of Finding: 1. The existing food service use has operated on-site prior to the requirement for a use permit and the existing outdoor dining patio has operated at the subject property since 2008. The existing surface parking lot on-site is expected to accommodate the temporary use. 2. The expanded dining area will not impede pedestrian access to the waterfront. The expanded dining area will occupy a maximum of standard parking stalls and will not impede any accessible parking spaces. Finding: E. The limited duration use is consistent with all applicable provisions of the General Plan, any applicable specific plan, the Municipal Code, and other City regulations. Facts in Support of Finding: 1. The General Plan land use designation for this site is CG (General Commercial). The CG designation is intended to provide for a wide variety of commercial activities oriented primarily to serve citywide or regional needs. Food service uses are consistent with Zoning Administrator Resolution No. ZA2021-069 Page 5 of 12 09-30-21 nonresidential uses conditionally permitted in commercial zoning districts. The expanded outdoor dining use is accessory to the existing food service use with outdoor dining, will be utilized for a limited duration on-site, and will not impede use of the site consistent with the CG designation. 2. The site is located in the CG (Commercial General) Zoning District. The CG designation is intended to provide for areas appropriate for a wide variety of commercial activities oriented primarily to serve Citywide or regional needs. The expanded outdoor dining use is accessory to the existing food service use with outdoor dining, will be utilized for a limited duration on-site, and will not impede use of the site consistent with the CG zoning designation. The CG zoning district allows temporary uses as specified within the Zoning Code and the proposed expanded dining area is permitted with a limited term permit in this Zoning district. 3. The Limited Term Permit for expanded outdoor dining would complement and be consistent with the other commercial uses permitted within the CG Zoning District of Mariners’ Mile in that it provides amenities that support visitors to the area and provides a social gathering place for those who live and work in the neighborhood, consistent with General Plan Land Use Element Goal LU2, below. Additional benefits include providing opportunities for the continuation of local businesses that generate sales tax and provide opportunities for employment, which is consistent with General Plan Land Use Element Policy LU 2.4 (Economic Development), also copied below: Goal LU 2 A living, active, and diverse environment that complements all lifestyles and enhances neighborhoods, without compromising the valued resources that make Newport Beach unique. It contains a diversity of uses that support the needs of residents, sustain and enhance the economy, provide job opportunities, serve visitors that enjoy the City’s diverse recreational amenities, and protect its important environmental setting, resources, and quality of life. Policy LU 2.4 Economic Development Accommodate uses that maintain or enhance Newport Beach’s fiscal health and account for market demands, while maintaining and improving the quality of life for current and future residents. (Imp 1.1, 24.1) 4. Council Policy D-9 recognizes the need to balance economic development objectives with protection of the environment and the health and safety of the community. The policy recognizes the need to provide effective and efficient structures for implementing economic programs, utilizing staffing to provide healthy, thriving businesses, and maintain a healthy economy while preserving the unique commercial villages in Newport Beach. The proposed limited term permit would support a local business and its economic prosperity while maintaining the unique character of the Mariners’ Mile corridor. 5. The site is not located within a specific plan area. Zoning Administrator Resolution No. ZA2021-069 Page 6 of 12 09-30-21 Coastal Development Permit In accordance with Section 21.52.015 (Coastal Development Permits, Findings and Decision) of the NBMC, the following findings and facts in support of such findings are set forth: Finding: F. Conforms to all applicable sections of the certified Local Coastal Program. Facts in Support of Finding: 1. West Coast Highway is considered a coastal view road. However, the expanded outdoor dining area is placed at the rear of the subject property where is it largely shielded from view from West Coast Highway. The nearest coastal viewpoint is John Wayne Park and the site is only marginally visible as a small portion of a larger panoramic perspective from this vantage point. The dining area complies with all applicable Local Coastal Program (LCP) development standards and maintains an area consistent with the existing pattern of development in Mariners’ Mile. Additionally, the project does not contain any unique features that could degrade the visual quality of the coastal zone. 2. The Property is located in the coastal zone and the proposed improvements require a coastal development permit in accordance with Newport Beach Municipal Code (NBMC) Section 21.52.035(C)(2) (Projects Exempt from Coastal Development Permit Requirements). The improvements are temporary in nature and do not constitute an increase of 10 percent or more of internal floor area or the construction, placement, or establishment of a significant nonattached structure. The expanded outdoor dining area and associated tent cover are minor detached structures that are not located between the sea and the nearest public road. The location of these improvements does not pose a conflict to coastal resources, coastal access, or other adverse environmental effects. While the property is bisected by the line delineating 300 feet from the mean high tide, the proposed improvements are located at the rear of the property and are not within the appeal area. 3. Improvements are complementary to the area; the expanded dining area provides aesthetically pleasing improvements that are complimentary to the existing restaurant design and compatible with the surrounding residential area across North Santa Ana Avenue. 4. The dining area provides appropriate substantial barriers adjacent to vehicle drive aisles and parking spaces. The barriers further serve to delineate the area dedicated for outdoor dining use and alcohol service from the public walkway. There are no existing City utilities within the expanded dining area. 5. Development authorized by this permit is not located in any environmentally sensitive habitat area and public access to the coast will not be blocked. Coastal access is increased by allowing the public to visit coastal areas and provides an added amenity Zoning Administrator Resolution No. ZA2021-069 Page 7 of 12 09-30-21 for visitors. The proposed operation does not contain environmentally sensitive habitat areas (ESHA), wetlands, or sandy beach area; 6. Development authorized is not located in an area in which the California Coastal Commission retains direct permit review authority. Finding: G. Conforms with the public access and public recreation policies of Chapter 3 of the Coastal Act if the project is located between the nearest public road and the sea or shoreline of any body of water located within the coastal zone. Fact in Support of Finding: 1. The project site is not located between the nearest public road and the sea or shoreline. Implementation Plan Section 21.30A.040 (Determination of Public Access/Recreation Impacts) requires that the provision of public access bear a reasonable relationship between the requirement and the project’s impact and be proportional to the impact. In this case, lateral and vertical coastal access is provided via an existing 10-foot wide lateral pedestrian easement along the waterfront across West Coast Highway (at 3333 West Coast Highway). Furthermore, the project is designed and sited (appropriate height, setbacks, etc.) so as not to block or impede existing public access opportunities. 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 15301 under Class 1 (Existing Facilities) and Class 3 (New Construction or Conversion of Small Structures) 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 Limited Term Permit No. XP2021-031 and Coastal Development Permit No. CD2021-060 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 and Title 21 Local Coastal Implementation Plan, of the Newport Beach Municipal Code. Zoning Administrator Resolution No. ZA2021-069 Page 8 of 12 09-30-21 PASSED, APPROVED, AND ADOPTED THIS 10TH DAY OF NOVEMBER, 2021. Zoning Administrator Resolution No. ZA2021-069 Page 9 of 12 09-30-21 EXHIBIT “A” CONDITIONS OF APPROVAL (Project-specific conditions are in italics) Planning Division 1. The development shall be in substantial conformance with the approved site plan stamped and dated with the date of this approval (except as modified by applicable conditions of approval). 2. The approval of this Limited Term Permit and Coastal Development Permit shall be effective from January 1, 2022, to December 31, 2022, unless an extension is granted by the Zoning Administrator in compliance with Municipal Code Sections 20.52.040.J (Extension of Limited Term Permit) and 21.54.060 (Time Limits and Extensions). The applicant shall be required to cease all permitted operations and remove any temporary improvements made to the outdoor spaces as part of this approval at the end of the effective period. 3. The expanded dining area shall not exceed 1,000 square feet in area. 4. The existing allowed hours of operation of the establishment shall not be extended. The hours of operation of the expanded area as part of this approval shall not extend beyond 9 p.m. 5. There shall be no use of amplified sound. 6. The applicant shall install and maintain a physical barrier between any area used and adjacent common pedestrian walkways in accordance with the requirements of the State Department of Alcoholic Beverage Control. 7. The Applicant shall obtain and maintain authorization from the State Department of Alcoholic Beverage Control (ABC) for all areas where the sale, service or consumption of alcohol is under the control of the applicant. The establishment shall abide by all applicable regulations of the State Department of Alcoholic Beverage Control. 8. The sale of alcohol “to go” to patrons that dine within the expanded outdoor patios shall be prohibited. 9. The establishment shall abide by all applicable Orange County Health Care Agency requirements. 10. The permittee shall provide adequate trash receptacles within the permitted patio shall and the operator shall provide for periodic and appropriate removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. Zoning Administrator Resolution No. ZA2021-069 Page 10 of 12 09-30-21 11. The Community Development Director or designee may inspect the modified area at any time during normal business hours. 12. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 13. 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. 14. This Limited Term Permit and Coastal Development Permit 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. 15. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to this Limited Term Permit and Coastal Development Permit. 16. 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 this Limited Term Permit No. XP2021- 031 and Coastal Development Permit No. CD2021-060 (PA2021-228) for A Restaurant. 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 17. Building permits are required for the use of any membrane or tent. Accessible routes, including under canopy(ies) must maintain a minimum clear height of 80 inches. 18. Physical barriers delineating the outdoor seating and adjoining vehicular ways shall not block egress or an accessible route and shall maintain a minimum of 48-inch clear. 19. Any areas used for temporary commercial or institutional use shall be accessible to disabled persons. Zoning Administrator Resolution No. ZA2021-069 Page 11 of 12 09-30-21 a. A minimum 4-foot-wide accessible path to all functional area shall be provided. b. Access to restrooms shall be provided at all times. c. Accessible parking stalls shall not be used for seating areas when onsite parking is provided. d. At least one accessible seating area shall be provided. e. Detectable warnings are required when pedestrian paths cross or are adjacent to a vehicular way where no physical barrier are provided to separate the two (2). 20. All exiting paths shall be a minimum 36 inches free and clear. All public walks and sidewalks shall be a minimum 48 inches free and clear. Fire Department 21. Fire lane(s) shall be identified on the plan. 22. Parking, displays, seating or other obstacles that interfere with emergency vehicles and personnel shall not be permitted in fire lanes. 23. Vehicles are permitted to stop in fire lanes awaiting service or delivery provided that the driver remains inside the vehicle and the vehicle is ready to move immediately upon orders from emergency personnel. 24. All Fire Department devices (fire hydrants, fire department connections, water valves, etc.) shall have a three-foot clearance in all directions. 25. Fire Department devices shall not be covered, blocked or otherwise hidden from plain view. 26. All building exits shall remain free and clear of any obstacles that would impede exiting from a building or suite and accessing the nearest public right-of-way. 27. Heat lamps or other heating elements shall comply with the following requirements in accordance with code section 3107.12 of the California fire code: a. Propane and other fuel-based heating elements (including but not limited to flammable/combustible gas, liquid, or solid materials) shall not be used within tents or canopies. b. Electric heaters must be ul listed for use within tents and/or canopies. c. Propane and other fuel-based heating devices with blowers may be permitted, with the heating element located a minimum of 10 feet from the edge of the tent or canopy. d. All heating equipment installations shall be approved for the fire code official. 28. Covered outdoor dining areas (separate or consolidated) shall comply with the following standards for tents larger than 400 square feet (2 or more walls) and/or canopies larger than 700 square feet (no walls or one wall): • Post maximum occupant load. • Do not exceed posted occupant load inside the tent or canopy. Zoning Administrator Resolution No. ZA2021-069 Page 12 of 12 09-30-21 • Visible and Mounted Fire Extinguishers with current service tags. • No Smoking Signs shall be installed. • Illuminated Exit Signs shall be installed. • Emergency Lighting shall be provided. • Exit doors are not to be blocked and are to remain accessible as exits while the tent is occupied. • All interior decorative fabrics or materials shall be flame resistant. Provide Certificates of Flame Resistance. • If Propane is used, a permit is required: Cooking and heating equipment shall not be located within 10 feet of exits or combustible materials. • LPG containers shall be located outside and be adequately protected and secured, and a permit will be required. Open flame or other devices emitting flame, such as candles, are not permitted inside or within 20 feet of the tent, canopy, or temporary membrane structure. • Tents and canopies shall have the State Fire Marshall tag indicating fire resistance. • Tents and canopies shall be designed and installed to withstand the elements of the weather and prevent collapsing through weights and ground anchorage. Public Works Department 29. The Applicant shall install and maintain a substantial physical barrier (water-filled traffic barrier or K-rail between the temporary expansion area and all driving areas, including drive aisles and parking spaces. The substantial barriers shall not encroach into the required dimensions of the drive aisle or adjacent parking spaces. 30. There shall be a minimum of 5 feet of space around all overhead facilities, such as poles, and 15 feet of space around all underground facilities, such as vault lids, manholes, vent pipes, pad-mounted transformers, etc. 31. Seating or structures below overhead conductors and/or under the ‘drip line’ shall be prohibited. 32. Public eating/dining at tables shall not be situated on top of energized vault lids, energized underground structures, or next to vent pipes, etc. 33. Expanded outdoor dining areas shall adhere to the SCE clearance decal examples provided in Attachment No. ZA 3.