HomeMy WebLinkAbout2017-9 - Upholding the Planning Commission's Approval of Use Permit No. UP2016-012 with Modified Conditions of Approval to Establish an Outdoor Dining Area Associated with an Existing Restaurant at 127 Marine Avenue (PA2015-016)RESOLUTION NO. 2017-9
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, UPHOLDING THE PLANNING
COMMISSION'S APPROVAL OF USE PERMIT NO. UP2016-012
WITH MODIFIED CONDITIONS OF APPROVAL TO ESTABLISH
AN OUTDOOR DINING AREA ASSOCIATED WITH AN EXISTING
RESTAURANT AT 127 MARINE AVENUE (PA2015-016)
WHEREAS, an application was filed by Dan Miller, with respect to property located at 127
Marine Avenue, and legally described as Balboa Island Sec 4 Lot 15 Blk & Lot 16 Blk 1 Ex E 10
Ft Lots 15 requesting to establish an outdoor dining area associated with an existing. restaurant.
The proposed outdoor dining area also requires relocation of existing bike racks;
WHEREAS, Mr. Miller proposes to construct a 200 -square -foot outdoor dining area located
along the front of the structure on Marine Avenue. The proposed area is located within the public
right-of-way;
WHEREAS, the subject property is located within the Mixed Use Water Related Zoning
District and the General Plan Land Use Element category is Mixed Use Water Related (MU -W2).
The Coastal Land Use Plan category is Mixed Use Water Related (MU -W);
WHEREAS, on March 19, 2009, the Planning Commission approved an amendment to
Use Permit No. UP2009-002 allowing for the remodel of the restaurant and determining the Use
Permit was consistent with the zoning provisions for alcohol sales. Conditions of approval were
established to minimize potential impacts from the restaurant operations to the nearby
neighborhood. Use Permit No. UP2009-002, as amended, and related conditions of approval
remain in effect;
WHEREAS, on December 3, 2015, the Planning Commission considered Use Permit No.
UP2015-006 for a similar request to establish an outdoor dining area. The Use Permit application
was accompanied by a request to amend the land use designation at 123 Marine Avenue to
accommodate an existing legal nonconforming encroachment of the restaurant structure on that
property. Because the action included a legislative action, the City Council was the final decision-
making body (GP2015-002, LC2015-001, CA2015-010). The Planning Commission
recommended denial of Use Permit No. UP 2015-006 and continued the land use amendment.
To allow further consideration and revision of the subject applications, the applicant voluntarily
withdrew both applications;
WHEREAS, a public hearing was scheduled to occur on October 20, 2016 in the Council
Chambers located at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose
of the public hearing was given in accordance with the Newport Beach Municipal Code
(NBMC). At the request of the applicant, the Planning Commission continued the item to its
regularly scheduled meeting on November 3, 2016;
Resolution No. 2017-9
Page 2 of 5
WHEREAS, on November 3, 2016, the Planning Commission conducted a public hearing
in the Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice of time,
place and purpose of the public hearing was given in accordance with the NBMC. At
conclusion of the hearing, the Planning Commission approved the project and adopted
Resolution 2035 containing the written findings supporting the action;
WHEREAS, following the Planning Commission's approval, a neighbor living adjacent
to the subject property appealed the Planning Commission's approval to the City Council;
WHEREAS, on January 24, 2017, the City Council held a noticed public hearing to
consider the appeal in the Council Chambers located at 100 Civic Center Drive, Newport Beach.
A notice of time, place and purpose of the public hearing was given in accordance with the NBMC.
Evidence, both written and oral, was presented to, and considered by, the City Council at the
public hearing; and
WHEREAS, on January 24, 2017 the City Council conducted a public hearing, and after
the conclusion of the public hearing, the City Council directed staff to modify the proposed
conditions of approval, which included the redesign and relocation of a portion of the proposed
outdoor dining area to Park Avenue.
NOW, THEREFORE, the City Council of the City of Newport Beach, California, hereby
resolves as follows:
Section 1: The City Council does hereby uphold the Planning Commission's approval
of Use Permit No. UP2016-012 to establish an outdoor dining area associated with an existing
restaurant at 127 Marine Avenue (PA2015-016) with the modified conditions of approval
attached as Exhibit "A," and incorporated herein by reference. The City Council's decision is
made in accordance with NBMC Section 20.52.020(F), and is supported by the following
findings and facts:
Finding:
A. The use is consistent with the General Plan and any applicable specific plan;
Fact in Support of Finding:
The subject property is designated by the General Plan as Mixed Use Water Related.
The proposed project is consistent with the MU -W2 land use category, which is
intended to provide for marine -related uses including retail, restaurants, and visitor -
serving uses with residential on the upper floors because the project consists of an
existing restaurant and residential use.
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;
Resolution No. 2017-9
Page 3 of 5
Facts in Support of Finding:
1. The subject property is located in the Mixed Use Water Related Zoning district.
Eating and drinking establishments are permitted within this district subject to the
approval of a use permit.
2. The proposed outdoor dining area is approximately 200 square feet in size which
does not require parking under Table 3-10 in NBMC Chapter 20.40.040 (Off -Street
Parking Spaces Required).
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 outdoor dining area is located along Marine Avenue and Park Avenue,
an active mixed use commercial area with high pedestrian use. Outdoor dining areas
are encouraged in mixed use areas as they contribute to the vibrancy of the area.
2. The subject dining area is limited to a four (4) foot extension from the building edge
along Marine Avenue and a three (3) foot extension from the property line along Park
Avenue. The sidewalk will be maintained at six (6) feet which is adequate to
accommodate pedestrian passage.
3. As conditioned, the outdoor dining area and glass doors will close at 9:00 p.m. or
10:00 p.m., as detailed in Condition of Approval No. 14.
4. As conditioned, the proposed glass doors are double paned (or similar material) to
provide improved, noise attenuation, as compared to the existing exterior wall and
windows.
5. A portion of the existing bike racks on Marine Avenue will be re -located within the
public right-of-way on the 200 and/or 300 block of Marine Avenue.
Findin :
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, and
Fact in Support of Finding:
Establishment of the outdoor dining area does not impact public and emergency
vehicle access and public services and utilities, as the improvements are limited to
a 200 -square -foot dining area and do not encroach into the roadway.
Resolution No. 2017-9
Page 4 of 5
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:
The project includes modified conditions of approval to ensure that potential conflicts
With surrounding land uses are minimized to the greatest extent possible. Closing
the outdoor dining area and the noise attenuated glass doors at 9:00 p.m. daily,
except Fridays and Saturdays between Memorial Day weekend and Labor Day, on
Federal holidays, and during community events when the outdoor dining area shall
close by 10:00 p.m., or prior to commencement of live entertainment will ensure
compliance with NBMC Chapter 10.26 (Community Noise Control).
2. An acoustical analysis, prepared by KFEB Acoustics on March 20, 2016, concluded
that with the implementation of proposed noise reduction measures the live
performances will comply with the City's nighttime noise threshold limit of 50 dBA.
3. Establishment of the outdoor dining area will require that bike racks be relocated to
the 200 and/or 300 blocks of Marine Avenue. Neighboring residents have expressed
concerns with noise created by the public loitering near the racks during late hours.
Relocation of a portion of the racks to a more central location, away from residential
uses, should address noise concerns associated with the bike racks.
Section 2: The City Council hereby waives portions of City Council Policy L-21,
"Sidewalk Cafe Standards and Procedures", to allow for a six (6) foot wide minimum pedestrian
clear width sidewalk in a potentially heavy pedestrian traffic area; to allow a barrier that would
be permanently bolted in place; to allow the outdoor dining area to be maintained above the
level of the existing sidewalk; and to allow the outdoor dining area to be located less than ten
feet from the corner of the building. The City Council also require the applicant to apply for an
Annual Outdoor Dining Encroachment Permit and pay all applicable fees and directs staff to
relocate the existing bike racks within the public right-of-way adjacent to the Village Inn to new
bike corrals in the 200 and/or 300 blocks of Marine Avenue.
Section 3: This action is categorically exempt under Section 15303, of the State
California Environmental Quality Act (CEQA) Guidelines — Construction or Conversion of Small
Structures because the improvements associated with the outdoor dining area are considered
accessory to the main structure. The project is also categorically exempt under Section 15302,
of the State CEQA Guidelines — Class 2 (Replacement or Reconstruction) on the basis that the
land use amendment does not result in new development or change the current use of the
property located at 127 Marine Avenue.
Section 4: The recitals provided in this resolution are true and correct and are
incorporated into the operative part of this resolution.
Resolution No. 2017-9
Page 5 of 5
Section 5: If any section, subsection, sentence, clause or phrase of this resolution is,
for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity
or constitutionality of the remaining portions of this resolution. The City Council hereby
declares that it would have passed this resolution, and each section, subsection, sentence,
clause or phrase hereof, irrespective of the fact that any one or more sections, subsections,
sentences, clauses or phrases be declared invalid or unconstitutional.
Section 6: This resolution shall take effect immediately upon its adoption by the City
Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 14'" day of February, 2017.
ATTEST:
Leilani 1. Brown
City Clerk
APPROVED AS TO FORM:
CITY ATTO NEY'S OFFICE
/46 (.r • )
Aaron C. Harp
City Attorney
Kevin Muld n
Mayor
EXHIBIT "A"
CONDITIONS OF APPROVAL
PLANNING
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. Use Permit No. UP2016-012 shall expire unless exercised within twenty-four (24) months from
the date of approval as specified in NBMC Section 20.54.060, unless an extension is otherwise
granted. Use Permit UP2009-002 and the 2012 Live Entertainment Permit, and associated
conditions of approval, shall remain in effect unless amended by this Use Permit.
3. The project is subject to all applicable City ordinances, policies, and standards.
4. 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 Use Permit.
5. This Use Permit may be modified or revoked by the Planning Commission should they
determine 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.
6. Any change in operational characteristics, expansion in area, or other modification to the
approved plans, shall require an amendment to this Use Permit or the processing of a new
Use Permit.
7. 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.
All noise generated by the proposed use shall comply with the provisions of NBMC Chapter
10.26 (Community Noise Control), all other applicable noise control requirements in the
NBMC and Condition No. 8 of the 2012 Live Entertainment Permit; however, NBMC Section
10.26.035(L) shall not apply.
Should the property be sold orotherwise come under different ownership, anyfuture owners
or assignees shall be notified of the conditions of this approval by either the current business
owner, property owner or the leasing agent.
10. No exterior amplified music, sound system, televisions, outside paging system shall be
utilized in conjunction with the outdoor dining area.
11. 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.
Resolution No. 2017-9 - Exhibit A
Page 2 of 5
12. 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 NBMC to require such permits.
13. 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 Village Inn Use Permit including, but not limited to, Use Permit No. UP2016-
012. This indemnification shall include, but not be limited to, damages awarded against the
City, if any, costs of suit, attomeys' 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, attomeys' 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.
14. The hours of the outdoor dining area shall be limited to 7:00 a.m. to 9:00 p.m. daily, except
Fridays and Saturdays between Memorial Day weekend and Labor Day, on Federal
holidays, and during community events when the outdoor dining area hours shall be 7:00
a.m. to 10:00 p.m. The outdoor dining area and its noise attenuated glass doors shall close
prior to the commencement of live entertainment. Upon closing the outdoor dining area and
when live entertainment is offered, the noise attenuated glass doors which access the outdoor
dining area shall be closed and no customers shall remain within the outdoor dining area when
it is closed.
15. Live entertainment shall be limited to 10:00 p.m. on nights before a school day, as calendared
by the Newport Mesa Unified School District, and limited to midnight on "non -school" nights
and on all Fridays and Saturdays.
16. On New Year's Eve, the restaurant shall be permitted to operate until 1:00 a.m. on January
1st. Live entertainment and alcoholic beverage service shall cease at or before 12:30 a.m.
17. All glass doors which provide access to the outdoor dining area and the door and window on
the south side of the building shall be noise attenuated to a STC rating of 34 per the Acoustical
Evaluation and Design Recommendations dated March 20, 2016 by KFEB Acoustics. The
effectiveness of the noise attenuation shall be documented in the door specifications and
reviewed during the plan check process.
18. The outdoor seating area shall not be permanently enclosed; however, roll -down plastic
shielding for protection from weather elements that can be rolled up after hours is allowed.
Canvas or other "temporary materials" that are affixed shall be prohibited.
Resolution No. 2017-9 - Exhibit A
Page 3 of 5
19. Prior to finalizing the building permit for the outdoor dining area, interior acoustical absorption
panels shall be installed per the Acoustical Evaluation and Design Recommendations dated
March 20, 2016 by KFEB Acoustics.
20. The assumptions and recommendations presented in the Acoustical Evaluation and Design
Recommendations prepared by KFEB Acoustics on March 20, 2016 shall be maintained by
the restaurant pertaining to upgrades and maintenance of attenuating materials (i.e., door and
window seals).
21. Live entertainment shall be limited to a maximum of four (4) musicians and/or vocalists using
amplified instruments and microphones at any one time. If bass sounds or noise become an
issue, the applicant will work with the Director of Community Development to provide sound
barriers or screens for the percussion or an all -electronic percussion system shall be utilized
so that speaker direction can control percussion as well.
22. 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.
23. There shall be no reduced price alcoholic beverage promotions offered by the restaurant after
9:00 P.M.
24. Food service from the regular menu shall be available to patrons up to thirty (30) minutes
before the schedule closing time of the restaurant.
25. Prior to occupying the outdoor dining area, the applicant shall obtain an Operator License from
the Newport Beach Police Department. A security plan shall be submitted with the Operator
License application.
Building Division
26. 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.
27. If the abatement period is extended, prior to issuance of building permits for the outdoor
dining area, a building permit application shall be filed to address the life safety and
structural issues associated with the portion of the restaurant structure which encroaches
onto 123 Marine Avenue.
28. If the abatement period is extended, prior to building permit final (certificate of occupancy)
of the outdoor dining area, building permits shall be obtained for the portion of the restaurant
structure which encroaches onto 123 Marine Avenue.
Resolution No. 2017-9 - Exhibit A
Page 4 of 5
29. Structural plans shall be required for the expansion of outdoor dining. A building permit shall
be required.
30. Wheelchair accessible path of travel to the area to the outdoor dining is required.
31. Delineate a wheelchair accessible seat in the outdoor dining area.
32. In addition to the requirements listed above, additional disable access upgrades are
required which shall include: the entrance, bar counter, and/or restrooms. Accessible
upgrades shall be limited to twenty percent (20%) of the value of the work for outdoor dining.
Public Works
33. The applicant shall obtain an Annual Outside Dining Encroachment Permit from the Public
Works Department and pay all applicable fees and costs for the proposed outdoor dining
area.
34. This use permit shall not become effective until such time the City Council authorizes the
following:
a. Waiver of City Council Policy L-21 as it pertains to specific components of the
outdoor dining area. Areas for the City Council's consideration is the need to
raise the dining area six (6) -inches above the sidewalk, allowance of a six (6) -
foot wide sidewalk instead of eight (8) -feet, the permanent nature of the
guardrails, and the projection of the accordian doors into the right-of-way.
b. Relocation of the affected bike racks or new bike corrals to be installed in the 200
and/or 300 block of Marine Avenue.
35. The applicant shall submit $6,000 to the City of Newport Beach within thirty (30) calendar
days of the effective date of the City Council authorizing relocation of the bike racks. These
funds will be used for the purchase and installation of the bike corrals to accommodate
more than ten (10) bikes and other related improvements. The new bike corrals shall be
installed prior to issuance of building permits for the outdoor dining area, and in any event,
within one hundred eighty (180) calendar days of the effective date of the City Council action
on the waiver of City Council Policy L-21 and authorization to relocate the bike racks.
36. Within three months of certificate of occupancy and full operation of the outdoor dining area,
the City shall undertake measurements of the noise generated by the outdoor dining area,
at the cost to the applicant. The analysis shall be considered by the Planning Commission
at a noticed public hearing to ensure compliance with the conditions of approval and the
City's Noise Ordinance. Modifications to conditions of approval may be required of the
project is not in compliance.
Resolution No. 2017-9 - Exhibit A
Page 5 of 5
37. Prior to certificate of occupancy, the applicant shall install landscaping on-site to the
greatest extent possible, as determined acceptable to the Community Development
Director.
38. The stage shall be located per the approved plans, but the applicant may relocate the stage
to minimize noise impacts with the prior written approval of the Community Development
Director. The speakers for entertainment shall face the west and/or north and shall be
directed away from the south to minimize impacts to adjacent residential properties.
39. The interior sound curtain along the south restaurant wall shall be fully extended across the
entire wall during live entertainment.
40. The sidewalk on Park Avenue shall be widened to allow outdoor dining to occupy up to
three (3) feet of the public right of way, while maintaining a six (6) -foot wide sidewalk. The
final design shall be approved by the Public Works Director, and the applicant shall
perform, or contract with the City to perform, all required improvements and be responsible
for the cost of all necessary improvements in the public right-of-way.
41. The outdoor dining area along Marine Avenue shall be four (4) feet in width as measured
from the building wall and may be raised to match the finish floor of the restaurant interior,
as required to comply with ADA requirements. The dining area will generally wrap around
from the Park Avenue dining area and extend from the building's north edge for
approximately thirty-two (32) feet to the south. An access door may be located at the
northernmost end of the outdoor dining area, but shall be no more than forty-two (42) inches
wide. No other doors shall be permitted along Marine Avenue.
42. Deliveries and refuse collection for the restaurant shall be prohibited between the hours of
10:00 p.m. and 7:00 a.m., daily.
43. Televisions shall not be oriented for the purposes of viewing from the public right of way.
44. The applicant will install a solid wall or plexiglass wall at the south end of the Marine Avenue
outdoor dining area.
45. The applicant may encroach three (3) feet into the right of way on Park Avenue with an
awning or other similar cover over the outdoor dining area.