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HomeMy WebLinkAboutZA2021-072 - APPROVING LIMITED TERM PERMIT NO. XP2021-034 TO ALLOW A TEMPORARILY EXPANDED OUTDOOR DINING AREA LOCATED AT 2600 EAST COAST HIGHWAY, SUITE 160 (PA2021-253)RESOLUTION NO. ZA2021-072 A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING LIMITED TERM PERMIT NO. XP2021-034 TO ALLOW A TEMPORARILY EXPANDED OUTDOOR DINING AREA LOCATED AT 2600 EAST COAST HIGHWAY, SUITE 160 (PA2021-253) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Bamboo Bistro (Applicant) with respect to property located at 2600 East Coast Highway, Suite 160, and legally described as Parcel 1 of Redivision No. 792, requesting approval of a limited term permit. 2. The Applicant requests a limited term permit to authorize a 550 square-foot temporarily expanded dining area previously authorized through Emergency Temporary Use Permit No. UP2020-125 (PA2020-220) for Bamboo Bistro for up to a one (1)-year term (January 1, 2022 through December 31, 2022). 3. The subject property is categorized Corridor Commercial (CC) by the General Plan Land Use Element and is located within the Commercial Corridor (CC) 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 on November 24, 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 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 Zoning Administrator Resolution No. ZA2021-072 Page 2 of 10 09-30-21 such use. The proposed scope of work is a maximum 550-square-foot outdoor dining patio at an existing restaurant for up to a one (1)-year limited term (January 1, 2022 through December 31, 2022).and qualifies under the parameters of the Class 1 and Class 3 exemptions. 3. The exceptions to the Class 3 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. In accordance with Section 20.52.040(G) (Limited Term Permits) of the NBMC, 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 (i.e., restaurant) is authorized through Use Permit No. UP3620 and Planning Director’s Use Permit No. 14 and includes 600 square feet of interior net public area. 2. The temporarily 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 through an emergency temporary use permit. 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 help preclude any detriment to the general welfare of the area. 3. The proposed operation is conditioned to be accessible to all persons, including those with disabilities, in accordance with the Americans with Disabilities Act (ADA). 4. 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. Zoning Administrator Resolution No. ZA2021-072 Page 3 of 10 09-30-21 5. The permitted use must be operated in compliance with applicable State Department of Alcoholic Beverage Control (ABC) requirements. 6. The overall plan includes appropriate delineation of outdoor use spaces with temporary physical barriers or markers. 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 flat and approximately 0.4 acres in size. The existing restaurant with outdoor dining has operated at the subject site since its original approval in 1998 (UP3620 and Planning Director’s Use Permit No. 14). Based upon the proposed site plan, there is adequate area to accommodate the expanded dining area without impacting pedestrian circulation. 2. The restaurant is located in the commercial corridor of Corona del Mar at the intersection of Dahlia Avenue and East Coast Highway. Along East Coast Highway is a variety of commercial uses, including personal services, professional office, fitness, and other eateries. The continued use of the expanded outdoor dining use will not impede use and enjoyment of the properties in the area and will instead add to the ambiance and character of the area. The restaurant will also continue to provide a convenience for nearby businesses and visitors to the area. 3. Facts 2, 3 and 4 in Support of Finding A are hereby incorporated by reference. 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 Dahlia Avenue and Fifth Avenue. A surface parking area is provided on-site. The expanded dining area occupies three (3) public parking spaces and part of an adjacent sidewalk. The temporary configuration has not posed any issue to date and no further traffic or parking issues are anticipated with the continued use of the expanded dining area. 2. The City is also undergoing an analysis of parking rates including rates related to food service and outdoor dining. Findings and recommendations of this study are anticipated Zoning Administrator Resolution No. ZA2021-072 Page 4 of 10 09-30-21 by December 2021 and may inform a future conditional use permit amendment for outdoor dining areas. 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 Fact in Support of Finding: 1. Fact 1 in Support of Finding B and Fact 1 in Support of Finding C are hereby incorporated by reference. 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 category for this site is Commercial Corridor (CC). The CC category is intended to provide 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 restaurant with outdoor dining, will be utilized for a limited duration on-site, and will not impede use of the site consistent with the CC designation. Outdoor dining is a use that tends to foster additional pedestrian activity. 2. The site is in the Commercial Corridor (CC) Zoning District. The CC District is intended to allow the location of commercial activities engaged in the sale of products or services relating to and supporting the Development Plan. The CC District allows restaurants at the site and the expanded dining area is a temporary use, authorized with a limited term permit. 3. The Limited Term Permit for temporarily expanded outdoor dining would complement and be consistent with the other commercial uses permitted within the CC District 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 Zoning Administrator Resolution No. ZA2021-072 Page 5 of 10 09-30-21 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 economic prosperity while maintaining the unique character of Corona del Mar. 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 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 Zoning Administrator of the City of Newport Beach hereby approves Limited Term Permit No. XP2021-034, 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 NBMC. PASSED, APPROVED, AND ADOPTED THIS 24TH DAY OF NOVEMBER, 2021. Zoning Administrator Resolution No. ZA2021-072 Page 6 of 10 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 the applicable conditions of approval). 2. The approval of this Limited Term Permit shall be effective for up to a one (1)-year term (January 1, 2022, to December 31, 2022), unless an extension is granted by the Zoning Administrator in compliance with Section 20.52.040(J) (Extension of Limited Term Permit) of the NBMC. The Applicant shall be required to cease all permitted operations at the end of the effective period. The concrete patio improvements shall be removed, and the entire affected area restored to the previously existing landscape conditions within 14 days after the end of the effective period. The Applicant shall be responsible for all construction- related costs and fees associated with patio removal and landscape restoration activity. 3. The Applicant shall be required to cease all permitted operations and remove any temporary improvements made to the outdoor spaces as part of this Limited Term Permit on or before December 31, 2022. 4. The Applicant shall obtain and maintain liability insurance for not less than $1,000,000 per occurrence and as specified by the City’s Risk Manager. All liability insurance policies shall specifically include the City, the City Council, its employees, and agents as additional insureds and shall be issued by an agent or representative of an insurance company licensed to do business in the State of California, which has one of the three highest or best ratings from the Alfred M. Best company. All insurance policies shall contain an endorsement obligating the insurance company to furnish the Community Development Director with at least thirty (30) days written notice in advance of the cancellation of the policy. 5. The expanded outdoor dining patio shall not exceed 550 square feet and a maximum of three (3) public parking spaces shall be used for temporary outdoor dining, as depicted on the attached site plan diagram. 6. The existing allowed hours of operation of the establishment shall not be extended. The hours of operation of the area modified as part of this Limited Use Permit shall not extend beyond 9 p.m. 7. A maximum of three (3) public parking spaces shall be used for temporary outdoor dining. 8. The use of amplified sound or live entertainment within the temporary area shall be prohibited. Zoning Administrator Resolution No. ZA2021-072 Page 7 of 10 09-30-21 9. The Applicant shall install and maintain a physical barrier (fencing) between any area used and adjacent pedestrian walkways. 10. 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. 11. All owners, managers, and employees selling and serving alcohol shall comply with all ABC guidelines and regulations and shall further take all measures necessary to prevent over-service of alcohol and/or disorderly conduct from patrons. Increased calls for Police Department service to the establishment or complaints made to the City will cause a review of operations and may result in a revocation of this Permit. 12. The sale of alcohol “to go” to patrons that dine within the restaurant or expanded outdoor patios shall be prohibited. 13. The establishment shall abide by all applicable Orange County Health Care Agency requirements. 14. This Limited Term 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 or welfare, or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a nuisance. 15. Any change in operational characters, expansion in area, or other modification to the approved plans, shall require an amendment to this Limited Term Permit. 16. The Community Development Director may immediately revoke this permit if the Director determines that there has been a violation of any condition of approval. Any revocation of a Limited Use Permit shall be deemed effective upon the posting of a notice of revocation at the site of the business granted the emergency temporary permit. 17. The Community Development Director may modify this Limited Term Permit. The Director shall notify the Applicant of any proposed modification and a decision to modify this permit shall be deemed effective upon the posting of a notice of modification at the site of the business granted the emergency temporary use permit 18. Upon termination or repeal of this Limited Term Permit, the Applicant shall immediately work to remove the temporary improvements in a timely manner and shall restore the expanded area back to its original use and improvements. 19. 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, Zoning Administrator Resolution No. ZA2021-072 Page 8 of 10 09-30-21 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 Temporary Use Permit No. XP2021-034 for Bamboo Bistro (PA2021-253). 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 20. Any areas used for temporary commercial or institutional use shall be accessible to disabled persons. a. An accessible path to all functional areas 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 on-site parking is provided. d. 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). 21. Provide not less than 5-percent accessible seating at tables and counters with knee clearance of at least 27 inches high, 30 inches wide, and 19 inches deep. 22. The tops of dining surfaces and work surfaces shall be 28 inches to 34 inches above the finish floor. 23. 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. 24. 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. 25. Accessible routes, including under canopy(ies) and other overhead improvements must maintain a minimum clear height of 80 inches. 26. All electrical distribution lines shall be in good working order and shall be protected from pedestrian and vehicular traffic and shall accommodate accessibility. Public Works Department 27. A substantial barricade (k-rail, water-filled barrier or other barrier, approved by the Public Works Department) shall be provided between the proposed outdoor dining area within Zoning Administrator Resolution No. ZA2021-072 Page 9 of 10 09-30-21 the parking spaces and the alley. This barrier shall also be provided between the outdoor dining and any parking drive aisles and parking stalls. 28. The dining area and substantial barricades shall not encroach into the existing drive aisle or alley right of way. 29. 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. 30. Seating or structures below overhead conductors and/or under the ‘drip line’ shall be prohibited. 31. Public eating/dining at tables shall not be situated on top of energized vault lids, energized underground structures, or next to vent pipes, etc. 32. Expanded outdoor dining areas shall adhere to the SCE clearance decal examples provided in Attachment No. ZA 4. Fire Department 33. Fire lane(s) shall be identified on the plan. 34. Parking, displays, seating or other obstacles that interfere with emergency vehicles and personnel shall not be permitted in fire lanes. 35. 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. 36. All Fire Department devices (fire hydrants, fire department connections, water valves, etc.) shall have a three-foot clearance in all directions. 37. Fire Department devices shall not be covered, blocked or otherwise hidden from plain view. 38. 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. 39. 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. Zoning Administrator Resolution No. ZA2021-072 Page 10 of 10 09-30-21 d. All heating equipment installations shall be approved for the fire code official. 40. 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 (1) wall): a. Post maximum occupant load. b. Do not exceed posted occupant load inside the tent or canopy. c. Visible and Mounted Fire Extinguishers with current service tags. d. No Smoking Signs shall be installed. e. Illuminated Exit Signs shall be installed. f. Emergency Lighting shall be provided. g. Exit doors are not to be blocked and are to remain accessible as exits while the tent is occupied. h. All interior decorative fabrics or materials shall be flame resistant. Provide Certificates of Flame Resistance. i. If Propane is used, a permit is required: Cooking and heating equipment shall not be located within 10 feet of exits or combustible materials. j. 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. k. Tents and canopies shall have the State Fire Marshall tag indicating fire resistance. l. Tents and canopies shall be designed and installed to withstand the elements of the weather and prevent collapsing through weights and ground anchorage.