HomeMy WebLinkAboutZA2016-016 - AMENDMENT TO MINOR USE PERMIT - 1332 Bison Ave RESOLUTION NO. ZA2016-016
A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE
CITY OF NEWPORT BEACH APPROVING MINOR USE PERMIT
NO. UP2016-008 FOR A NEW RESTAURANT TO OCCUPY AN
EXISITNG RESTAURANT SPACE AND CHANGE THE TYPE OF
ALCOHOL LICENSE AND THE OPENING HOUR LOCATED AT
1332 BISON AVENUE (PA2016-032)
THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Murray Wishengrad, TLT Investors V, LLC, with respect to
property located at 1332 Bison Avenue, and legally described as Parcel 1 of Parcel Map
No. 2001-140 requesting approval of an amendment to an existing use permit.
2. The applicant proposes to amend a previously approved Use Permit No. UP2014-047 to
change the Alcoholic Beverage Control (ABC) license at an existing eating and drinking
establishment (previously occupied by Mozambique Peri Peri) from a Type 47 (On Sale
General — Eating Place) to a Type 41 (On Sale Beer and Wine—Eating Place).
Additionally, the request includes a change in the opening hour from 10:00 a.m. to 8:00
a.m. However, staff is recommending an opening hour of 6:00 a.m. to provide future
flexibility for the establishment. These changes are a result of a new restaurant (TLT
Food) occupying the existing restaurant space. No other changes are proposed including
the closing hour which will remain at 11:00 p.m.
3. The subject property is located within the Bonita Canyon Planned Community (PC 50)
Zoning District and the General Plan Land Use Element category is General Commercial
(CG).
4. The subject property is not located within the coastal zone.
5. A public hearing was held on April 14, 2016, in the Corona del Mar Conference Room
(Bay E-1st Floor) at 100 Civic Center Drive, Newport Beach. 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.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
1 . This project has been determined to be categorically exempt pursuant to Title 14 of the
California Code of Regulations (Section 15301, Article 19 of Chapter 3, Guidelines for
Implementation of the California Environmental Quality Act) under Class 1 (Existing
Facilities) of the Guidelines for CEQA.
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2. The existing commercial space has been a restaurant use for several years within a
shopping center. The interior tenant improvements are minor in nature and do not
include an increase in area or change of use.
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 such findings 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 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 subject property is located in Reporting District 54 (RD 54). The Part One Crimes
(Part One Crimes are the eight most serious crimes defined by the FBI Uniform Crime
Report — homicide, rape, robbery, aggravated assault, burglary, larceny-theft, auto
theft, and arson) crime rate in RD 54 is higher than adjacent Reporting Districts 51 and
52, but lower than Reporting District 36 and the City overall.
2. Year to date, zero crimes have been reported at the subject property.
3. The Police Department has reviewed the proposal, provided operating conditions of
approval, and has no objection to the change in alcoholic beverage license type or the
earlier opening hour.
ii. The numbers of alcohol-related calls for service, crimes, or arrests in the reporting
district and in adjacent reporting districts.
1. The total number of alcohol-related calls for service, crimes, or arrests in RD 54 is
higher than adjacent Reporting District 52 by one, but lower than Reporting Districts
36 and 51 and significantly less than the City overall. The Police Department has
reviewed the proposal and has no objection.
2. Year to date, one call for service representing less than one percent (1/1,678 =
0.0006) of all calls for service in the Reporting District have been reported at the
subject property. There have been no arrests or citations reported at the subject
property.
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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 site is developed with a commercial shopping center which is consistent with the
General Plan designation, General Commercial. Properties within the shopping center
consist of retail, service, and eating and drinking establishment uses. The property is
not located within proximity to any day care centers, hospitals, park and recreation
facilities, places of worship, schools, or similar uses that attract minors. The nearest
residential and recreational uses are buffered from the shopping center by MacArthur
Boulevard and Bison Avenue. Eating and drinking establishments with incidental
alcohol service have existed at the subject location since original construction of the
shopping center in 2002 and the proposed change in Alcoholic Beverage Control
license type is not anticipated to alter the operational characteristics of the use such
that it becomes detrimental to the area.
iv. The proximity to other establishments selling alcoholic beverages for either off-site or
on-site consumption.
1. Multiple eating and drinking establishments within the shopping center including
Wildfish Seafood Grille (Type 47), Islands (Type 47), Johnny's Real New York Pizza
(Type 41), and Pei Wei (Type 41) sell alcoholic beverages. Previously, at the subject
tenant space Mozambique Peri Peri operated with a Type 47 (On-Sale General —
Eating Place) license. There is no evidence suggesting these existing restaurants with
alcohol service have been detrimental to surrounding properties or the neighborhood
and the change in license type at the subject location with the earlier opening hour is
not expected to generate any increase in alcohol-related nuisances.
V. Whether or not the proposed amendment will resolve any current objectionable
conditions.
1. An eating and drinking establishment with alcohol service has operated at the subject
location since 2002. The proposed amendment is not correcting any objectionable
conditions.
2. 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 establishment. Operational
conditions of approval recommended by the Police Department relative to the sale of
alcoholic beverages will ensure compatibility with the surrounding uses and minimize
alcohol related impacts.
3. The existing hours of operation of the establishment help to minimize the potential
effects on land use. The establishment closes by 11:00 p.m., daily, which will ensure
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the use does not become a late night bar, tavern, or nightclub without a future
amendment to this Use Permit.
4. The establishment is located within an existing shopping center which is developed
with other commercial uses. Changing the alcohol beverage control license will not
alter the existing operation, but will complement the food service and provide a
convenience to customers.
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:
B. 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 as General Commercial (CG) which is intended
to provide for a wide variety of commercial activities oriented primarily to serve
citywide or regional needs.
2. The existing eating and drinking establishment is located within the Bluffs Shopping
Center and serves those working, residing, or visiting the surrounding neighborhood,
consistent with the CG land use designation.
3. The subject property is not a part of a specific plan area.
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 site is located in Commercial Sub-Area 5 of the Bonita Canyon Planned
Community (PC 50) Zoning District which was intended to provide for up to 55,000
square feet of commercial uses. Eating and drinking establishments are permitted
uses subject to the approval of a use permit.
2. The previous eating and drinking establishment operated pursuant to Use Permit No.
UP2014-047, which allowed the sale and service of food and beverages with a Type 47
ABC License, and established hours of operation between 10:00 a.m. and 11:00 p.m.,
daily.
3. The change of the opening hour from 10:00 a.m. to 6:00 a.m. is consistent with other
uses in the shopping center that have 5:30 a.m. (Coffee Bean) and 6:00 a.m. (Panera
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Bread) opening hours. Furthermore, these earlier opening hours have not proven
detrimental and the closest residential uses are over 300 feet away across major
arterial roads.
4. The use will remain an eating and drinking establishment and the change in ABC license
type will not alter or intensify the existing use. There will be no change in the floor area or
the number of seats.
5. The conditions of approval reflected in "Exhibit A" of this resolution ensure that
potential conflicts with surrounding land uses are eliminated or minimized to the
greatest extent possible.
6. The tenant improvements are currently in the plan check process and will comply with
all Building Code and Fire Code requirements.
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. Eating and drinking establishments with the service of alcohol have operated at the
shopping center since original construction in 2002 and have not proven detrimental to
the area.
2. The principal use will remain an eating and drinking establishment and the change in
license type will not alter the design, size, or operating characteristics of the facility.
3. The operational conditions of approval recommended by the Police Department
relative to the sale of alcoholic beverages will ensure compatibility with the
surrounding uses and minimize alcohol related impacts. The project has been
conditioned to ensure the welfare of the surrounding community and that the eating
and drinking establishment does not becorne a bar or tavern. The establishment is
required to comply with the requirements of the Alcoholic Beverage Control
Department to ensure the safety and welfare of customers and employees of the
establishment. The project has been conditioned so that no dancing or live
entertainment will be permitted on the premises.
4. The earlier opening hour of 6:00 a.m. is consistent with the shopping center which has
tenants that open as early as 5:30 a.m.
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.
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Facts in Support of Finding:
1. The existing eating and drinking establishment is located within an existing shopping
center and has demonstrated that it is physically suitable in terms of design, location,
shape, and size to support the use.
2. Adequate public and emergency vehicle access, public services, and utilities are
provided for on-site.
Finding:
F. 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 amended use permit 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 tenant space during business hours, if directly related to the
patrons of the establishment.
2. The eating and drinking establishment will continue to service patrons of the shopping
center, surrounding commercial buildings, and provide dining services as a public
convenience to the surrounding neighborhood. The service of alcohol will continue to
complement the principal use of the facility and provide an economic opportunity for
the property owner to maintain a successful business in a way which best serves the
community.
3. The proposed restaurant does not include late hours, distilled spirits, dancing or live
entertainment which could have the potential to generate additional nuisances to the
surrounding neighborhood.
4. As conditioned, the owners, managers and employees selling alcohol are required to
undergo and successfully complete a certified training program in responsible methods
and skills for selling alcohol.
5. Residential uses do not exist within proximity of the establishment and are over 300
feet away separated from the shopping center and by Bison Avenue or MacArthur
Boulevard.
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SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Zoning Administrator of the City of Newport Beach hereby approves Minor Use
Permit No. UP2016-008 (PA2016-032), 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 (14) days following the date this
Resolution was adopted unless within such time an appeal is filed with the Community
Development Director in accordance with the provisions of Title 20 (Planning and
Zoning), of the Newport Beach Municipal Code.
3. This resolution supersedes Use Permit No. UP2014-047 (PA2014-182) approved
December 23, 2014, which upon vesting of the rights authorized by Minor Use Permit
No. UP2016-008 (PA2016-032), shall become null and void
PASSED, APPROVED, AND ADOPTED THIS 14P DAY OF APRIL, 2016.
N
#redWisneski, AIP, Zoning Administrator
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EXHIBIT "A"
CONDITIONS OF APPROVAL
PLANNING
1. 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.)
2. 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.
3. 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.
4. The eating and drinking establishment as proposed will contain approximately 1,900
gross square feet. Any change in operational characteristics, expansion in area, or
other modification to the approved plans, may require an amendment to this Minor Use
Permit or the processing of a new use permit.
5. Hours of operation shall be limited to between 6:00 a.m. and 11:00 p.m., daily. Any
increase in the hours of operation shall be subject to the approval of an amendment to
this Minor Use Permit or the processing of a new use permit.
6. All employees shall park on-site.
7. The reciprocal arrangement for ingress, egress and parking that applies to the subject
property shall remain in effect for the duration of the eating and drinking establishment.
8. All mechanical equipment shall be screened from view of adjacent properties and
adjacent public streets in accordance with Newport Beach Municipal Code Section
20.30.020 (Buffering and Screening), and shall be sound attenuated in accordance
with Chapter 10.26 (Community Noise Control).
9. Grease interceptors shall be installed on all fixtures in the restaurant where grease
may be introduced into the drainage systems, unless otherwise approved by the
Building Division and Public Works Department. This condition does not preclude the
shared use of a common area grease interceptor device, if determined adequate by
the Building Division and Public Works Department.
10. The facility shall comply with the provisions of Chapter 14.30 (Fats, Oils and Grease
Control) for commercial kitchen grease disposal.
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11. Kitchen exhaust fans shall be designed to control smoke and odor to the satisfaction of
the Building Division.
12. Should the alcoholic beverage control (ABC) license be transferred, any future license
holders, operators or assignees shall be notified of the conditions of this approval by
either the current licensee, business operator, or the leasing company. Future
licensees, operators or assignees shall submit, within thirty (30) days of transfer of the
ABC license, a letter to the Planning Division acknowledging their receipt and
acceptance of the limitations, restrictions and conditions of approval of this minor use
permit.
13. The type of alcoholic beverage license issued by the California Board of Alcoholic
Beverage Control (ABC) shall be a Type 41 (On Sale Beer and Wine- Eating Place) in
conjunction with the service of food.
14. The alcoholic beverage sales for the purpose of on-site consumption shall be limited to
the designated dining areas indicated on the floor plan submitted with the application.
Any change in the operation of on-sale alcoholic beverage sales or increase in the
dining area devoted to alcohol sales for customers shall be subject to the approval of
an amendment to this minor use permit issued by the Zoning Administrator.
15. Bar counters for the service of only alcoholic beverages shall be prohibited.
16. The 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 during business
hours. If the operator fails to discourage or correct nuisances, the Zoning Administrator
may review, modify, or revoke this minor use permit in accordance with Chapter 20.96
of the Zoning Code.
17. A covered wash-out area for refuse containers and kitchen equipment shall be
provided and the area shall drain directly into the sewer system, unless otherwise
approved by the Building Division and Public Works Department.
18. 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.
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 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
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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).
2.1 . 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 twenty (20) feet of the premises.
22. Deliveries and refuse collection for the facility shall be prohibited between the hours of
10:00 p.m. and 8:00 a.m., daily, unless otherwise approved by the Director of
Community Development, and may require an amendment to this Use Permit.
23. 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.
24. There shall be no live entertainment.
25. No outside paging system shall be utilized in conjunction with this establishment.
26. 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.
27. This approval shall expire and become void unless exercised within twenty-four (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.
28. 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 TLT Food Minor Use Permit including, but not limited to
Minor Use Permit No. UP2016-008 (PA2016-032). 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.
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Police Department Conditions
29. Food service from the regular menu must be available to patrons up to thirty (30)
minutes before the scheduled closing time.
30. There shall be no reduced price alcoholic beverage promotions after 9:00 p.m.
31. 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.
32. 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.
33. This approval does not permit the prernises to operate as a bar, lounge, or nightclub
as defined by the Newport Beach Municipal Code,
34. No alcoholic beverages shall be consumed on any property adjacent to the licensed
premises under the control of the licensee.
35. The applicant shall post and maintain professional quality signs measuring 12 inches
by 12 inches with lettering no smaller than 2 inches in height that read, "No Alcoholic
Beverages Beyond This Point' at all exits leading from the dining area.
36. The 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.
37. There shall be no on-site radio, television, video, film or other electronic media
broadcasts, including recordings to be broadcasted at a later time, which include the
service of alcoholic beverages, without first obtaining an approved special event permit
issued by the City of Newport Beach.
38. No games or contests requiring or involving the consumption of alcoholic beverages
shall be permitted.
39. Dancing shall be prohibited, unless otherwise approved in conjunction with a Special
Events Permit.
40. All owners, managers and employees selling alcoholic beverages shall undergo and
successfully complete an ABC approved certified training program in responsible
methods and skills for selling alcohol beverages.
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