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HomeMy WebLinkAboutZA2022-013 - APPROVING MINOR USE PERMIT NO. UP2021-032 FOR A NEW TAKE OUT- SERVICE LIMITED RESTAURANT LOCATED AT 2233 WEST BALBOA BOULEVARD, UNIT 105 (PA2021-181)RESOLUTION NO. ZA2022-013 A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH, CALIFORNIA APPROVING MINOR USE PERMIT NO. UP2021-032 FOR A NEW TAKE OUT- SERVICE LIMITED RESTAURANT LOCATED AT 2233 WEST BALBOA BOULEVARD, UNIT 105 (PA2021-181) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1.An application was filed by Jonathan Ng, with respect to property located at 2233 West Balboa Boulevard (Suite 105), and legally described as Parcel 1 of Block 22 of Parcel Map No. 2007-146 requesting approval of a minor use permit. 2.The applicant proposes a minor use permit to operate a take-out service limited use within an existing commercial retail space. The business would occupy approximately 1,275 gross square feet and include 6 seats maximum for customers. No alcohol service, late hours (after 11:00 p.m.), or live entertainment is proposed. 3.The subject property is designated MU-W2 (Mixed-Use Water 2) by the General Plan Land Use Element and is located within the MU-W2 (Mixed-Use Water) Zoning District. 4.The subject property is located within the coastal zone. The Coastal Land Use Plan category is MU-W (Mixed-Use Water Related), and it is located within the MU-W2 (Mixed-Use Water) Coastal Zone District. A coastal development permit is not required because the project would not result in the intensification of use. The project does not result in an increased demand for parking and the take-out business includes a maximum of 6 seats or fewer. 5.A public hearing was held on February 24, 2022, 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) 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 ongoing use of existing buildings where there is negligible or no expansion of use. The proposed project involves alterations to the interior floor plan of a vacant commercial space with no expansion in use. Zoning Administrator Resolution No. ZA2022-013 Page 2 of 9 10-18-21 SECTION 3. REQUIRED FINDINGS. In accordance with Section 20.52.020 (Conditional Use Permits and Minor Use Permits) of the Newport Beach Municipal Code, 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 General Plan designates the site MU-W2 (Mixed-Use Water-Related). This designation applies to properties in which marine-related uses may be intermixed with general commercial, visitor-serving commercial, and residential dwelling units on the upper floors. 2.The proposed establishment is a commercial use intended to serve nearby residents, the surrounding community, and visitors to the City of Newport Beach. Therefore, it is consistent with the MU-W2 designation. 3.Small eating and drinking establishments exist in the mixed-use building and the proposed take-out service establishment would be complementary to the surrounding commercial and residential uses. 4.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 this Zoning Code and the Municipal Code. Facts in Support of Finding: 1.The property is located in the Mixed-Use Water Related (MU-W2) Zoning District. The proposed establishment, which includes kitchen facilities, six (6) seats or fewer, no alcohol service, and no late hours, is a permitted use subject to the approval of a minor use permit pursuant to Newport Beach Municipal Code Section 20.22.020 (Mixed-Use Zoning Districts Land Uses and Permit Requirements). 2.The property is nonconforming in parking because it is deficient in parking for the nonresidential uses. Based on a retail parking ratio of one (1) space per 250 square feet, 44 spaces (10,799/250 = 43.2) are required. The property currently provides six (6) spaces on-site. 3.NBMC Section 20.38.060 (Nonconforming Parking) allows a change of use on sites with nonconforming parking. It specifies that an existing use may be changed to a new use Zoning Administrator Resolution No. ZA2022-013 Page 3 of 9 10-18-21 allowed in that zoning district without providing additional parking, provided no intensification or enlargement (e.g., increase in floor area, or lot area) occurs and the new use requires a parking rate of no more than one (1) space per two hundred fifty (250) square feet of gross building area. 4. The parking requirement for a take-out service limited, eating, and drinking establishment is one (1) space per 250 square feet, and no intensification or enlargement is proposed. Therefore, no additional parking is required. 5. As conditioned, the proposed establishment will comply with Zoning Code standards for eating and drinking establishments, including those specific to the take-out service limited use classification, which includes a maximum of six (6) seats and no alcohol service. 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. The proposed establishment will be accessible from 23rd Street, West Balboa Boulevard and two (2) alleys, which provide convenient access to motorists, pedestrians, and bicyclists. 2. The mixed-use building contains various retail, and visitor-serving commercial uses including small eating and drinking establishments. The proposed establishment is compatible with the existing and allowed uses in the area. 3. As conditioned, the allowed hours of operation will be 7 a.m. to 11 p.m., daily, which will minimize any disturbance to residences near the property. 4. The existing trash storage area at the rear of the property is adequate to accommodate the proposed use. It is conveniently located where materials can be deposited and collected and does not impede any parking spaces. 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 existing parking lot provides adequate circulation for patrons. Zoning Administrator Resolution No. ZA2022-013 Page 4 of 9 10-18-21 2. The site has been reviewed by the Fire Department to ensure adequate public and emergency vehicle access is provided. 3. Any proposed site and tenant improvements will comply with the Zoning Code and all Building, Public Works, and Fire Codes. Finding: E. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Facts in Support of Finding: 1. The project has been reviewed and includes conditions of approval to ensure that potential conflicts with the surrounding land uses are minimized to the greatest extent possible. The operator is required to take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks and areas surrounding the subject property and adjacent properties during business hours, if directly related to the patrons of the establishment. 2. The proposed take-out service, eating and drinking establishment will help revitalize the project site and provide an economic opportunity for the property owner to update the tenant space, and provide additional services to residents and visitors. 3. 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. 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) 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. UP2021-032 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 Zoning Administrator Resolution No. ZA2022-013 Page 5 of 9 10-18-21 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 FEBRUARY, 2022. Zoning Administrator Resolution No. ZA2022-013 Page 6 of 9 10-18-21 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 and floor plans stamped and dated with the date of this approval (except as modified by applicable conditions of approval). 2. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 3. 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 Minor Use Permit. 4. The hours of operation for the establishment shall be limited to 7 a.m. through 11 p.m., daily. 5. The sale of alcohol is prohibited. 6. The maximum number of seats allowed in the eating and drinking establishment shall be six (6). No outdoor seating is permitted unless an amendment to this Minor Use Permit or a Limited Term Permit is acquired. 7. All proposed signs shall be in conformance with the approved Comprehensive Sign Program for the project site and provisions of Chapter 20.42 (Signs) of the Newport Beach Municipal Code. 8. Minor Use Permit No. UP2021-032 shall expire unless exercised within 24 months from the date of approval as specified in Section 20.91.050 of the Newport Beach Municipal Code, unless an extension is otherwise granted. 9. 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. 10. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to this Minor Use Permit or the processing of a new Minor Use Permit. Zoning Administrator Resolution No. ZA2022-013 Page 7 of 9 10-18-21 11. 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. 12. 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. 13. 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. 14. 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. 15. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. 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 7:00AM and 10:00PM Between the hours of 10:00PM and 7:00AM 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 16. 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. 17. Construction activities shall comply with Section 10.28.040 of the Newport Beach Municipal Code, which restricts hours of noise-generating construction activities that produce noise to between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday. Noise-generating construction activities are not allowed on Saturdays, Sundays or Holidays. 18. No outside paging system shall be utilized in conjunction with this establishment. Zoning Administrator Resolution No. ZA2022-013 Page 8 of 9 10-18-21 19. All trash shall be stored within the building or within dumpsters stored in the trash enclosure (three [3] walls and a self-latching gate) or otherwise screened from view of neighboring properties, except when placed for pick-up by refuse collection agencies. The trash enclosure shall have a decorative solid roof for aesthetic and screening purposes. 20. Trash receptacles for patrons shall be conveniently located both inside and outside of the establishment, however, not located on or within any public property or right-of-way. 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 10:00 p.m. and 7:00 a.m. on weekdays and Saturdays and between the hours of 10:00 p.m. and 9:00 a.m. on Sundays and Federal holidays, unless otherwise approved by the Director of Community Development, and may require an amendment to this Minor 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 Newport Beach Municipal Code to require such permits. 26. This approval shall expire and become void unless exercised within 24 months from the actual date of review authority approval, except where an extension of time is approved in compliance with the provisions of Title 20 Planning and Zoning of the Newport Beach Municipal Code. 27. 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 Oinkmoo Boba including, but not limited to, Minor Use Permit No. UP2021-032 Zoning Administrator Resolution No. ZA2022-013 Page 9 of 9 10-18-21 (PA2021-181). 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 28. 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 California Building Code. The construction plans must meet all applicable State Disabilities Access requirements. Approval from the Orange County Health Department is required prior to the issuance of a building permit. 29. Any proposed doors shall not swing onto public property.