HomeMy WebLinkAboutZA2013-009 Approved Fig & Olive MUP - 151 Newport Center DriveRESOLUTION NO. ZA2013 -009
A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE
CITY OF NEWPORT BEACH APPROVING MINOR USE PERMIT
NO. UP2012 -029 TO ALLOW A TYPE 47 (ON SALE GENERAL)
ALCOHOLIC BEVERAGE CONTROL LICENSE AT A NEW
FOOD SERVICE, EATING AND DRINKING ESTABLISHMENT
LOCATED AT 151 NEWPORT CENTER DRIVE (PA2012 -163)
THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Bob Lisle, representing the Irvine Company, with respect to
property located at 151 Newport Center Drive, and legally described as Parcel 2 of Lot
Line Adjustment No. LA2012 -005, recorded September 11, 2012 as Instrument No.
2012000528643 of official records, in the office of the County Recorder of the County of
Orange, requesting approval of a minor use permit.
2. The applicant requests a minor use permit to allow a Type 47 (On Sale General)
Alcoholic Beverage Control (ABC) license for Fig & Olive, a food service, eating and
drinking establishment with late hours (after 11:00 p.m.), live entertainment, and an
outdoor dining patio. The restaurant is under construction and will be located in
Fashion Island at the site formerly occupied by Coco's, which was operated as a
restaurant with alcohol beverage sales. The restaurant will be 9,299 gross square feet
with a 2,293 square foot outdoor patio area. The hours of operation will be from 9:00
a.m. to 2:00 a.m., daily. Live entertainment in the form of live music during brunch
hours between 9:00 a.m. and 3:00 p.m., Saturday and Sunday is requested. The
recommended hours of operation for live entertainment during the evening hours are
until 1:00 a.m., daily, with no other restrictions regarding the hours or type of live
entertainment. Due to the late hours of operation (after 11:00 p.m.), approval of an
Operator's License by the Newport Beach Police Department will be required.
3. The subject property is located within the Fashion Island Sub -Area of the PC -56 (North
Newport Center Planned Community) Zoning District and the General Plan Land Use
Element category is CR (Regional Commercial).
4. The subject property is not located within the coastal zone.
5. A public hearing was held on February 28, 2013 in the City Hall Council Chambers, 3300
Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of
the meeting was given in accordance with the Newport Beach Municipal Code.
Evidence, both written and oral, was presented to, and considered by, the Zoning
Administrator at this meeting.
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SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
1. This project has been determined to be categorically exempt under the requirements
of the California Environmental Quality Act under Class 1 (Existing Facilities).
2. The proposed project involves the addition of alcoholic beverages at a recently
constructed restaurant with live entertainment and an outdoor dining patio. Therefore,
both the interior use and outdoor dining patio qualify for a categorical exemption under
Class 1.
SECTION 3. REQUIRED FINDINGS.
In accordance with Section 20.48.030 (Alcohol Sales) of the Newport Beach Municipal Code,
the following findings and facts in support of the findings for a use permit are set forth:
Finding
A. The use is consistent with the purpose and intent of Section 20.48.030 (Alcohol Sales of
the Zoning Code.
Facts in Support of Finding
In finding that the proposed use is consistent with Section 20.48.030 (Alcohol Sales) of the
Zoning Code, the following criteria must be considered:
i. The crime rate in the reporting district and adjacent reporting districts as compared to
other areas in the City.
1. The proposed establishment is located within Reporting District 39, wherein the
number of crimes is higher than adjacent Reporting Districts and the City. RD 43, 44,
and 47 have a lower number of crimes as they are primarily residential with few
commercial uses. Due to the high concentration of commercial land uses in Fashion
Island, the crime rate and shoplifting rate is greater than adjacent residential Reporting
Districts; however, the Newport Beach Police Department does not consider the
number significant given the type of development within this Reporting District.
ii. The numbers of alcohol - related calls for service, crimes, or arrests in the reporting
district and in adjacent reporting districts.
1. Due to the high concentration of commercial land uses, the calls for service and
number of arrests are greater than adjacent residential Reporting Districts. The Police
Department does not consider the rate high because of the concentration of
restaurants and commercial uses within Fashion Island and the surrounding North
Newport Center. The Newport Beach Police Department has not previously reported
any calls for service to the subject property since the proposed use is part of a new
development project.
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iii. The proximity of the establishment to residential zoning districts, day care centers,
hospitals, park and recreation facilities, places of worship, schools, other similar uses,
and any uses that attract minors.
1. The shopping center does not abut sensitive land uses and is separated from other uses
by parking lots, roadways and other commercial uses. Residential uses are permitted in
the northern sections of the PC -56 (North Newport Center Planned Community) Zoning
District within Blocks 500, 600, 800, and San Joaquin Plaza. The proposed use is not
located in close proximity to these residential districts, day care centers, park and
recreation facilities, places of religious assembly, and schools.
iv. The proximity to other establishments selling alcoholic beverages for either off -site or
on -site consumption.
1. Muldoon's Irish Pub is located at 202 Newport Center Drive to the south of the project
site at the intersection of Anacapa and Newport Center Drive. Muldoon's is authorized
to operate until 2:00 a.m. and provides live entertainment, dancing, and Type 47 (On
Sale General) and Type 68 (Portable Bar) alcohol licenses. Off -sale alcohol sales are
located in the vicinity at Whole Foods, at 461 Newport Center Drive, within Fashion
Island. Additionally, there are many comparable restaurant establishments with the
Fashion Island Shopping Center. These include other pad restaurant tenants such as
Roy's Hawaiian Fusion, Fleming's Steak House, and True Food Kitchen. The Type 47
(On Sale, General) alcohol license requested is the same as those obtained for said
establishments and there is no evidence suggesting these uses have been detrimental
to the neighborhood. However, Fig & Olive is the only location with late hours after
12:00 midnight within Fashion Island. While the proposed hours of operation are later,
an adequate security plan per the Police Department is in place for the Fashion Island
Shopping Center and conditions of approval are proposed to adequately manage the
late hour component of the proposed restaurant.
v. Whether or not the proposed amendment will resolve any current objectionable
conditions
1. The project has been reviewed and conditioned to ensure that the purpose and intent of
Section 20.48.030 (Alcohol Sales) of the Zoning Code is maintained and that a healthy
environment for residents and businesses is preserved. The service of alcohol is
intended for the convenience of customers dining at the restaurant. Operational
conditions of approval relative to the sale of alcoholic beverages will help ensure
compatibility with the surrounding uses and minimize alcohol related impacts.
2. The restaurant use will be located within a shopping center designated to include such
development. The Regional Commercial (CR) designation of the General Plan allows
eating and drinking establishments. The service and consumption of alcohol at the
proposed restaurant, pursuant to a Type 47 Alcoholic Beverage Control license under
the conditions imposed by this Minor Use Permit that it will be operated and
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maintained, complies with the provisions of the Zoning Code and the North Newport
Center Planned Community District Regulations.
3. The restaurant pad is adjacent to a highly - traveled commercial area that is occupied
by a mixture of office and retail uses. It is anticipated that the establishment will serve
visitors and employees of the nearby businesses who stop and eat within the North
Newport Center area. Adding alcohol service to the menu will compliment the food
service and provide for the convenience of customers.
4. The proposed restaurant is located within a new restaurant pad building currently under
construction and is designed as a restaurant that includes on -site service and
consumption of alcoholic beverages.
Minor Use Permit
In accordance with Section 20.52.020.E (Findings and Decision) of the Newport Beach
Municipal Code, the following findings and facts in support of the findings for a use permit are
set forth:
Finding
B. The use is consistent with the General Plan and any applicable specific plan:
Facts in Support of Findinq
1. The Land Use Element of the General Plan designates the project site as Regional
Commercial (CR), which is intended to provide retail, entertainment, service, and
supporting uses that serve local and regional residents. The proposed restaurant with
alcoholic beverage sales and live entertainment is a use that serves local and regional
residents and is consistent with land uses in the CR land use designation.
Finding
C. The use is allowed within the applicable zoning district and complies with all other
applicable provisions of this Zoning Code and the Municipal Code:
Facts in Support of Finding
1. The project is located in the Fashion Island Sub -Area of the PC -56 (North Newport
Center Planned Community) Zoning District District. Fashion Island is intended to be a
regional retail and entertainment center and a day /evening destination with a wide
variety of uses that will serve visitors, residents, and employees of the area. The
restaurant with alcoholic beverage sales and live entertainment is a commercial use
that serves visitors, residents, and employees in the area and, therefore, is consistent
with the purposes of the North Newport Center Planned Community District for the
Fashion Island Sub -Area.
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2. Eating and Drinking Establishments are permitted uses within the Fashion Island Sub -
Area of the North Newport Center Planned Community Zoning District. Pursuant to the
Planned Community Text, live entertainment falls beneath the definition of
"Commercial Recreation and Entertainment" which is a permitted use within the
Fashion Island subarea. Pursuant to the Planned Community Text, the on- premise
sale of alcohol in conjunction with an eating and drinking establishment requires a
minor use permit.
3. The proposed outdoor dining area and the restaurant area are within the limits of the
cumulative floor area allocated for Fashion Island.
Finding
D. The design, location, size, and operating characteristics of the use are compatible with
the allowed uses in the vicinity.
Facts in Support of Finding
1. The Fashion Island Sub -Area permits a range of retail, dining, and commercial
entertainment uses within the PC -56 (North Newport Center Planned Community)
Zoning District. While the proposed establishment provides a component of late night
dining services similar to a lounge, the use is compatible with surrounding permitted
commercial uses in the vicinity and there are no sensitive land uses located nearby.
2. The proposed hours of operation are 9:00 a.m. to 2:00 a.m., daily. While the proposed
hours of operation for Fig & Olive are later than the hours for other restaurants within
Fashion Island, an adequate security plan is in place for the Fashion Island Shopping
Center and conditions of approval are proposed to adequately manage the late hour
component of the proposed restaurant.
3. Due to the late hours of operation (after 11:00 p.m.), approval of an Operator's License
by the Newport Beach Police Department will be required. A copy of the Fashion
Island Security Plan will be provided as part of the operator license process for the
proposed business. An operator license required pursuant to NBMC Chapter 5.25 may
be subject to additional and /or more restrictive conditions to regulate and control
potential nuisances associated with the operation of the restaurant. The operator
license will help ensure compatibility of the proposed business with the surrounding
uses in the vicinity.
4. Live entertainment in the form of live music is requested during brunch hours between
9:00 a.m. and 3:00 p.m., Saturday and Sunday. The recommended hours of operation
for live entertainment during the evening hours are until 1:00 a.m., daily, to encourage
patrons to leave in compliance with the 2:00 a.m. closing hour.
5. The on -site consumption of alcoholic beverages will be incidental to the restaurant use.
The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food
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during the same period, per the conditions of approval. Alcoholic beverage service will
be under the supervision of LEAD - trained employees.
Finding
E. The site is physically suitable in terms of design, location, shape, size, operating
characteristics, and the provision of public and emergency vehicle (e.g., fire and medical)
access and public services and utilities:
Facts in Support of Finding
1. The Fashion Island shopping center provides adequate parking and circulation within
the surface parking lots and parking structures on site.
2. This site has been reviewed by the Fire Department to ensure adequate public and
emergency vehicle access is provided. Utilities are provided with all applicable
requirements.
3. The site has historically been developed and used as a restaurant location with alcohol
service and the new building under construction is intended for the same use. The tenant
space is designed and developed for an eating and drinking establishment.
4. Improvements to the project site will comply with all Building, Public Works, and Fire
Codes. All ordinances of the City and all conditions of approval will be complied with.
Finding
F. Operation of the use at the location proposed would not be detrimental to the harmonious
and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard
to the public convenience, health, interest, a safety, or general welfare of persons
residing or working in the neighborhood of the proposed use.
Facts in Support of Finding
1. The project has been reviewed and 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 food service, eating and drinking establishment with alcohol service will serve
visitors and the surrounding business community. The proposed establishment will
provide alcohol service as a public convenience to visitors and workers within the
surrounding area.
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3. Fashion Island management has historically provided efficient on -site security and
cooperates with the Newport Beach Police Department. The provision of an operator
license will further enable the Police Department to regulate the operation of the
proposed business.
4. The applicant is required to install a grease interceptor, 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 approves Minor Use
Permit No. UP2012 -029 (PA2012 -163), subject to the conditions set forth in Exhibit A,
which is attached hereto and incorporated by reference.
2. This action shall become final and effective fourteen days after the adoption of this
Resolution unless within such time an appeal is filed with the Director of Community
Development in accordance with the provisions of Title 20 Planning and Zoning, of the
Newport Beach Municipal Code.
3. This resolution supersedes Use Permit No. UP1860, which upon vesting of the rights
authorized by Minor Use Permit No. UP2012 -029 (PA2012 -163), shall become null
and void.
PASSED, APPROVED AND ADOPTED THIS 28" DAY OF FEBRUARY, 2013.
Wisneslii, VAICP, Deputy Director
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EXHIBIT "A"
CONDITIONS OF APPROVAL
Planning Division Conditions
1. This approval supersedes Use Permit No. UP1860.
2. The development shall be in substantial conformance with the approved site plan, floor
plans and building elevations stamped and dated with the date of this approval. (Except
as modified by applicable conditions of approval.)
3. Alcohol service shall be limited to a Type 47 (On Sale General) Alcoholic Beverage
Control License.
4. The hours of operation shall be limited to between 9:00 a.m. to 2:00 a.m., daily.
5. Live entertainment shall be permitted at the subject property from 11:00 a.m. to 1:00
a.m., daily. There shall be no live entertainment allowed on the premises without first
obtaining a Live Entertainment Permit from the City. Prior to the issuance of building
permits for the change of occupancy, the applicant shall obtain a Live Entertainment
Permit from the Revenue Division.
6. The operator as well as any future operators of the restaurant shall obtain an Operator
License pursuant to Chapter 5.25 of the Municipal Code to ensure the business is
operated in a safe manner. The Operator License may be subject to additional and /or
more restrictive conditions to regulate and control potential late -hour nuisances
associated with the operation of the theater.
7. Prior to the issuance of building permits, Fair Share Traffic Fees shall be paid for any
additional gross floor area associated with the restaurant and mezzanine in accordance
with Chapter 15.38 of the Newport Beach Municipal Code. The applicant shall be
credited for square footage identified in the restaurant pad shell building under Plan
Check No. 1365 -2012 and the remaining balance shall be charged to the applicant.
8. Prior to the issuance of building permits, San Joaquin Transportation Corridor Fees shall
be paid for any additional gross floor area associated with the restaurant and mezzanine.
The applicant shall be credited for square footage identified in the restaurant pad shell
building under Plan Check No. 1365 -2012 and the remaining balance shall be charged to
the applicant.
9. Approval does not permit the premises to operate as a bar, tavern, cocktail lounge or
nightclub as defined by the Newport Beach Municipal Code, unless the Zoning
Administrator first approves an amended minor use permit. This Minor Use Permit shall
be terminated if the operation is no longer maintained as a "bona fide public eating place"
as defined by the California Department of Alcoholic Beverage Control.
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10. No alcoholic beverages shall be consumed on any property adjacent to the licensed
premises under the control of the licensee.
11. Petitioner shall not share any profits or pay any percentage or commission to a
promoter or any other person based upon monies collected as a door charge, cover
charge, or any other form of admission charge, including minimum drink orders or the
sale of drinks.
12. A Special Event Permit is required for any event or promotional activity outside the
normal operational characteristics of this restaurant business 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.
13. There shall be no dancing allowed on the premises.
14. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of
food during the same period. The licensee shall at all times maintain records, which
reflect separately the gross sales of food and the gross sales of alcoholic beverages of
the licensed business. These records shall be kept no less frequently than on a
quarterly basis and shall be made available to the Police Department on demand.
15. There shall be no exterior advertising or signs of any kind or type, including advertising
directed to the exterior from within, promoting or indicating the availability of alcoholic
beverages. Interior displays of alcoholic beverages or signs which are clearly visible
to the exterior shall constitute a violation of this condition.
16. All owners, managers, and employees selling alcoholic beverages shall undergo and
successfully complete a certified training program in responsible methods and skills for
selling alcoholic beverages. The certified program must meet the standards of the
California Coordinating Council on Responsible Beverage Service or other
certifying /licensing body, which the State may designate. The establishment shall
comply with the requirements of this section within 180 days of the issuance of the
certificate of occupancy. Records of each owner's, manager's, and employee's
successful completion of the required certified training program shall be maintained on
the premises and shall be presented upon request by a representative of the City of
Newport Beach.
17. The operator of the restaurant facility shall be responsible for the control of noise
generated by the subject facility. All noise generated by the proposed use shall comply
with the provisions of Chapter 10.26 and other applicable noise control requirements
of the Newport Beach Municipal Code.
18. All mechanical equipment shall be screened from view of adjacent properties and
adjacent public streets, and shall be sound attenuated in accordance with Chapter 10.26
of the Municipal Code, Community Noise Control.
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19. All trash shall be stored within the building or within dumpsters stored in the trash
enclosure (three 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. 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).
21. The operator of the food service use shall be responsible for the clean -up of all on -site
and off -site trash, garbage and litter generated by the use.
22. Storage outside of the building shall be prohibited, with the exception of the required
trash container enclosure.
23. The exterior of the business shall be maintained free of litter and graffiti at all times.
The owner or operator shall provide for daily removal of trash, litter, and debris from
the premises and on all abutting sidewalks within 20 feet of the premises. Graffiti shall
be removed within 48 hours of written notice from the City.
24. The alcoholic beverage outlet operator shall take reasonable steps to discourage and
correct objectionable conditions that constitute a nuisance in parking areas, sidewalks,
and areas surrounding the alcoholic beverage outlet and adjacent properties, if directly
related to the patrons of the subject alcoholic beverage outlet.
25. All proposed signs shall be in conformance with the provisions of the PC -56 (North
Newport Center Planned Community), Chapter 20.42 (Sign Standards) of the Newport
Beach Municipal Code, or an approved Comprehensive Sign Program for the project
site.
26. 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
permit.
27. The Zoning Administrator may add to or modify conditions of approval to this Minor
Use Permit, upon a determination that the operation which is subject of this Minor Use
Permit causes injury, or is detrimental to the health, safety, peace, morals, comfort, or
general welfare of the community.
28. Any changes in operational characteristics, hours of operation, expansion in area, or
modification to the floor plan, shall require an amendment to this Minor Use Permit,
unless otherwise approved by the Planning Division.
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29. Should the business, subject to the Minor Use Permit conditioned herein, be sold or
otherwise come under different ownership or a change in operators, any future
owners, operators, or tenants shall be notified of the conditions of this approval by
either the current business owner, property owner, or the leasing agent.
30. This Minor Use Permit shall expire unless exercised within twenty -four months from
the date of approval as specified in Section 20.91.50 of the Newport Beach Municipal
Code.
31. 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 the Fig & Olive Minor Use Permit including, but not
limited to, the Minor Use Permit No. UP2012 -029 (PA2012 -163). 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 and Fire Department Conditions
32. 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.
33. A covered wash -out area (36 inches wide by 36 inches deep by 6 feet high) for refuse
containers and kitchen equipment shall be provided and shall drain directly into the sewer
system, unless otherwise approved by the Community Development Director and Public
Works Director in conjunction with the approval of an alternative drainage plan. The
washout area shall be specifically shown on the construction drawings submitted for
building permits.
34. The facility shall comply with the provisions of Chapter 14.30 of the Municipal Code for
commercial kitchen grease disposal, as determined by the Building Division and the
Utilities Department.
35. The restaurant shall provide the number of plumbing fixtures to satisfy the requirements
of Chapter of the California Building Code, 2010.
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36. Prior to issuance of building permits, an exit analysis shall be provided for the outdoor
dining patio.
37. The site plan shall clearly identify the parking, path of travel, entrance, restrooms, fixed
seating, and bar seating to comply with accessibility requirements.
38. The facility shall be designed to meet exiting and fire protection requirements as
specified by the California Building Code and shall be subject to review and approval by
the Building Division.
39. The project shall comply with State Disabled Access requirements.
40. Approval is required by the Health Department.
41. Public sanitation facilities shall be available to the general public (patrons) during regular
business hours of the operation, unless otherwise approved by the Building Division.
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