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HomeMy WebLinkAboutZA2022-017 - APPROVING MINOR USE PERMIT NO. UP2021-044 FOR A FOR A NEW TAKE OUTSERVICE LIMITED RESTAURANT LOCATED AT 217 MARINE AVENUE, UNIT B (PA2021-254)RESOLUTION NO. ZA2022-017 A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH, CALIFORNIA APPROVING MINOR USE PERMIT NO. UP2021-044 FOR A FOR A NEW TAKE OUT- SERVICE LIMITED RESTAURANT LOCATED AT 217 MARINE AVENUE, UNIT B (PA2021-254) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Mysa Tran (Applicant), with respect to property located at 217 Marine Avenue, Unit B, and legally described as Lot 20, Block 12, Section 4, of the Balboa Island Tract, requesting approval of a minor use permit. 2. The Applicant proposes to operate a new take-out service, limited eating and drinking establishment (boba shop). The use would occupy an approximately 563-square-foot suite within an existing commercial building. The Applicant is not proposing to provide any seating, alcohol service, or late hours (after 11:00 p.m.). 3. The subject property is located within the Mixed-Use Water (MU-W2) Zoning District and the General Plan Land Use Element category is Mixed-Use Water 2 (MU-W2). 4. The subject property is located within the coastal zone. The Coastal Land Use Plan category is Mixed-Use Water Related (MU-W) and it is located within the MU-W2 (Mixed- Use Water) Coastal Zone District. The proposed boba shop does not result in an increase in the parking rate and therefore is not considered an intensification of use that would require a coastal development permit. 5. A public hearing was held on March 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 minor alterations to existing structures involving negligible or no expansion of use. The proposed project involves alterations to the interior floor plan of an existing commercial space with no expansion in floor area. SECTION 3. REQUIRED FINDINGS. Zoning Administrator Resolution No. ZA2022-017 Page 2 of 9 01-25-19 In accordance with Section 20.52.020 (Conditional Use Permits and Minor Use Permits) of the NBMC, the following findings and facts in support of such findings are set forth: Finding: A. The use is consistent with the General Plan and any applicable specific plan. Facts in Support of Finding: 1. The General Plan designates the site MU-W2 (Mixed-Use Water 2). 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. 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. 2. 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. 3. The subject property is not part of a specific plan area. Finding: B. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code. Facts in Support of Finding: 1. The property is located in the Mixed-Use Water (MU-W2) Zoning District. The proposed establishment, which includes customer ordering area, a point of sales area, a kitchen and prep area, a storage room, and no onsite seating is a permitted use subject to the approval of a minor use permit pursuant to NBMC Section 20.22.020 (Mixed-Use Zoning Districts Land Uses and Permit Requirements). 2. The subject property was developed in 1948 with a two (2)-story building. The building has three (3) tenant suites and provides three (3) parking spaces in the rear of the building, accessed from the alley. A restaurant operates in the suite adjacent to the proposed project and a dentist office operates in the suite above. The existing uses have been in operation since the 1970s and 1940s, respectively, and prior to current zoning code parking requirements. The building is considered legal nonconforming for parking. 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 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 Zoning Administrator Resolution No. ZA2022-017 Page 3 of 9 01-25-19 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. 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, no alcohol service, and no late hours. Conditions of Approval numbers 6, 5, and 4 ensure that the business shall operate per the aforementioned characteristics or may be required to obtain a new use permit. 6. While the applicant is not proposing any seating as part of this project, Condition of Approval no. 6 has been written to allow the applicant the flexibility off adding up to six (6) seats without amending this use permit, consistent with the definition of a take-out service, limited eating and drinking establishment given in NBMC section 20.70.020 (Definitions). The addition of seating at a later date however shall be subject to the review of the Building Division and the requirements of the California Building Code, including but not limited to providing a public restroom and an accessible path. 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 can be accessed by either motorists, pedestrians, or cyclists from Marine Avenue or through the alley in the rear. 2. Marine Avenue is developed with a mix of uses including retail, office, and eating and drinking establishments. The proposed establishment is compatible with the existing and allowed uses. 3. Condition of Approval no. 4 limits the allowed hours of operation from 9 a.m. to 9 p.m., daily, which will minimize the potential for disturbances to the residential uses to the rear of the property. 4. A trash enclosure is not currently provided on-site. Instead, all waste and recycling are taken to the dumpster behind the building. Condition of Approval No. 21 requires the operator maintain the trash area such that odors are controlled appropriately. Should the existing trash area be determined by the City in the future to be inadequate, the Applicant will be required to increase the frequency of pickups. Zoning Administrator Resolution No. ZA2022-017 Page 4 of 9 01-25-19 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 project site is located on Marine Avenue which is located at the entrance of Balboa Island and has heavy vehicular traffic and pedestrian activity. The proposed boba shop will not result in increased vehicular and pedestrian activity. 2. The Fire Department reviewed the project and site to ensure adequate public and emergency vehicle access is provided. 3. Any proposed site and tenant improvements must comply with the zoning code and all Building, Public Works, and Fire Codes for permits to be issued. 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, limited, eating, and drinking establishment will add additional take-out options to the neighborhood 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. 4. The proposed use includes limited hours, no alcohol service is proposed, and there is no increased parking demand. Based upon the Zoning Code requirements, the proposed use will not result in a detriment to the surrounding community. Zoning Administrator Resolution No. ZA2022-017 Page 5 of 9 01-25-19 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. UP2021-044 subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. 3. This action shall become final and effective 14 days following the date this Resolution was adopted unless within such time an appeal or call for review is filed with the Community Development Director in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED, AND ADOPTED THIS 24TH DAY OF MARCH, 2022. Zoning Administrator Resolution No. ZA2022-017 Page 6 of 9 01-25-19 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 9 a.m. through 9 p.m., daily. 5. There shall be no sales and/or service of alcohol permitted unless a new use permit is approved. 6. No seating is included as part of the proposed project. Should the applicant decide to add incidental seating at a later date, the maximum number of seats allowed shall be six (6). The addition of any seating shall be subject to the review of the Building Division and the requirements of the California Building Code including but not limited to providing a public restroom and accessible path. 7. No outdoor seating is permitted unless an amendment to this Minor Use Permit or a Limited Term Permit is acquired. 8. 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. 9. This Minor Use Permit No. UP2021-044 shall expire unless exercised within 24 months from the date of approval as specified in Section 20.54.060 (Time Limits and Extensions) of the NBMC, unless an extension is otherwise granted. 10. 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. Zoning Administrator Resolution No. ZA2022-017 Page 7 of 9 01-25-19 11. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require subsequent review by the Planning Division and an amendment to this Minor Use Permit or the processing of a new Minor Use Permit may be required. 12. A copy of the Resolution, including conditions of approval Exhibit “A” shall be incorporated into the Building Division and field sets of plans prior to issuance of the building permits. 13. 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. ZA2022-017 Page 8 of 9 01-25-19 19. 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. 20. 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. 21. 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). 22. All trash dumpsters and/or receptacles shall have a solid cover or lid. The lid shall remain closed when the dumpster is not in use. r 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 Golden Rabbit Restaurant including, but not limited to, Minor Use Permit No. UP2021-044 (PA2021-254). 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 Zoning Administrator Resolution No. ZA2022-017 Page 9 of 9 01-25-19 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. Public Works 28. The Applicant is required to install a new sewer cleanout on the existing sewer lateral per City Standard STD#406 Building Division 29. 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. 30. Approval from the Orange County Health Department is required prior to the issuance of a building permit.