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HomeMy WebLinkAbout4.0_501 Park Avenue Restaurant_PA2019-238 CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT April 23, 2020 Agenda Item No. 4 SUBJECT: 501 Park Avenue Restaurant (PA2019-238)  Conditional Use Permit No. UP2019-053 SITE LOCATION: 501 Park Avenue APPLICANT: CLK Island Properties, LLC. OWNER: Steve Rogers PLANNER: David Lee, Associate Planner 949-644-3225 or dlee@newportbeachca.gov PROJECT SUMMARY An amendment to an existing conditional use permit to upgrade the current Alcoholic Beverage Control (ABC) license from a Type 41 (On-Sale Beer and Wine – Eating Place) to a Type 47 (On Sale General) for an existing restaurant, and to extend the hours of operation from 7:00 a.m. to 9:00 p.m., daily, to 7:00 a.m. to 10:00 p.m., daily. The applicant also requests a continuation of a previously approved 23 parking space reduction, as well as the reduction of one additional parking space. RECOMMENDATION 1) Conduct a public hearing; 2) Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines, because it has no potential to have a significant effect on the environment; and 3) Adopt Resolution No. PC2020-009 approving Conditional Use Permit No. UP2019- 053 (Attachment No. PC 1). 1 INTENTIONALLY BLANK PAGE2 501 Park Avenue Restaurant (PA2019-238) Planning Commission, April 23, 2020 Page 2 VICINITY MAP GENERAL PLAN ZONING LOCATION GENERAL PLAN ZONING CURRENT USE ON-SITE MU-W2 (Mixed Use Water Related) MU-W2 (Mixed-Use Water Related) Restaurant and Residential NORTH RT (Two-Unit Residential) R-BI (Two-Unit Residential, Balboa Island) Residential SOUTH MU-W2 MU-W2 Office and Upper Level Residential EAST RT R-BI Residential WEST RT R-BI Residential 3 INTENTIONALLY BLANK PAGE4 501 Park Avenue Restaurant (PA2019-238) Planning Commission, April 23, 2020 Page 3 INTRODUCTION Project Setting The existing restaurant is located at the intersection of Park Avenue and Agate Avenue on Balboa Island. The Balboa Island Ferry Landing is located approximately 480 feet southwest at the end of Agate Avenue. The property is developed with a two-story building containing a restaurant on the first floor and two dwelling units on the second floor. There is one, non-conforming single-car garage for use by the residents. Also, three open parking spaces dedicated to the restaurant are available on-site. Surrounding uses include duplexes and single-unit dwellings. A few commercial uses, such as medical offices, laundry mat, and a small hotel are located south of the subject property on Agate Avenue. On-street parking is free; however, there are time restrictions on Agate Avenue. Private off-street surface parking in the area is very limited, with a few spaces located behind some nearby businesses. There is no public off-street parking on Balboa Island. However, several municipal lots are located on Balboa Peninsula that are within walking distance from the Balboa Island Ferry Landing on Palm Street. Background According to historical building records, a restaurant has been in operation at the subject property since 1961. The Planning Commission approved Use Permit No. UP1834 on June 30, 1977, which allowed for the restaurant to sell beer and wine. No additional parking was required at that time since there was no increase in intensity to the restaurant. In 1977, the existing restaurant consisted of 360 square feet of net public area (NPA) and a 70-square-foot outdoor patio, with hours of operation from 8:00 a.m. to 8:00 p.m., daily. Other uses on the property included a real estate office, gift shop, art studio, and the two second floor residential apartments. At the time of the approval, a two-car carport served the apartments upstairs, while four off-street parking spaces served the commercial uses. Subsequent to this approval, the restaurant expanded to the suite previously occupied by a gift shop, totaling 665 square feet of NPA. The restaurant also expanded the outdoor seating area from 70 square feet to 503 square feet. There are no permits on file associated with that expansion, and the unauthorized additions were discovered when the owners applied for a use permit for further expansions in 2014. On May 22, 2014, the Planning Commission approved Use Permit No. UP2014-009 to authorize the previous expansion and the restaurant to expand an additional 79 square feet of interior NPA (744 square feet total) and outdoor dining patio by 170 square feet (673 square feet total). Included in the project was a take-out service coffee bar, which occupied an additional 276 square feet. The coffee bar was reviewed as a related yet separate use from the restaurant and required parking was based on the take-out service, limited land use. The restaurant was approved to operate from 8:00 a.m. to 9:00 p.m., 5 501 Park Avenue Restaurant (PA2019-238) Planning Commission, April 23, 2020 Page 4 daily. As a result of the expansion, it was determined that the zoning code required 26 parking spaces while three parking spaces were provided. Due to the heavy walk-up and biking traffic on Balboa Island and its location on Park Avenue, the Planning Commission waived the remaining parking required for the restaurant. At the time of the approval, the two existing residential apartments remained above the restaurant, and the two-car carport had been converted into a two-car garage. Although it was described as a two- car garage, the garage did not meet the Code-required dimensions to park two cars and can only accommodate one vehicle. Subsequent to the Planning Commission approval, Director’s Determination No. DD2015- 003 authorized the reduction of off-site parking spaces from three spaces to two spaces. During the plan check process for the approved restaurant expansion, errors were discovered on the conceptual plans approved with UP2014-009 that showed a portion of a parking space that would encroach into the public right-of-way, which could not be accommodated. It was determined that it was not feasible to accommodate three parking spaces on-site due to multiple code requirements, including disability requirements, trash enclosure, and a planter for safety purposes. Therefore, a total of two open parking spaces were provided on-site for the restaurant. Subsequent to the Director’s Determination, the trash enclosure was relocated into a portion of the existing, non-conforming one-car garage, which serves the two residential apartments above the restaurant. As a result of this change, the previous open parking space that was lost was restored to have a total of three off-street parking spaces serving the restaurant. There are no permits on file associated with these changes, and those permits are required regardless of the outcome of this application request. Project Description The applicant requests a conditional use permit to upgrade the current ABC license from a Type 41 (On-Sale Beer and Wine – Eating Place) to a Type 47 (On Sale General) for the existing restaurant, and to extend the hours of operation from 7:00 a.m. to 9:00 p.m., daily, to 7:00 a.m. to 10:00 p.m., daily. Since there is an existing parking reduction that was granted by Use Permit No. UP2014-009, staff is recommending the continuation of the parking reduction and requesting the reduction of one additional space due to a mathmatical error that will be described below. DISCUSSION General Plan and Zoning The site is designated as Mixed Use Water Related (MU-W2) by the General Plan and Zoning Code, which applies to waterfront properties in which marine-related uses may be intermixed with general commercial, visitor-serving commercial, and residential dwelling units on the upper floors. The existing restaurant operation is defined as an Eating and 6 501 Park Avenue Restaurant (PA2019-238) Planning Commission, April 23, 2020 Page 5 Drinking Establishment, Food Service, No Late Hours, which offers alcoholic beverage service. The existing coffee bar is separate from the restaurant and is classified as a Take-Out Service, Limited. The proposed project is to upgrade the existing ABC license from a Type 41 to a Type 47, as well as extend the closing hours from 9:00 p.m. to 10:00 p.m., daily for the restaurant. A previous parking reduction of 23 spaces was approved through Use Permit No. UP2014-009. Since this Use Permit will supersede UP2014-009, a conditional use permit is required to re-approve the previous reduction in parking. Local Coastal Plan The subject property is located within the Coastal Zone. The site is designated as Mixed Use Water (MU-W) by the Coastal Land Use Plan and is located in the Mixed-Use Water Related (MU-W2) Coastal Zoning District. The aforementioned land use plan category and coastal zone district applies to waterfront properties in which marine-related uses may be intermixed with general commercial, visitor-serving commercial and residential dwelling units on the upper floors. The existing restaurant serves visitors to the City by providing an amenity near recreational opportunities on Balboa Island. A coastal development permit is not required because there is no physical expansion or intensification of use. The change in the ABC license type to allow liquor sales is ancillary to the existing restaurant operations. Also, the closing hours are being extended from 9:00 p.m. to 10:00 p.m., daily. No late hours (after 11:00 p.m.) are proposed as part of this project. Alcohol Service Alcohol service is not a new privilege for the restaurant, but the service of distilled spirits (liquor) is new. No alcohol-related calls for service were reported related to the business in the last reporting period (2018). The change in ABC license type to allow service of liquor is acceptable to the Police Department with the inclusion of appropriate conditions (Attachment No. PC 3). The existing permitted hours of operation will be extended from a closing time of 9:00 p.m. to 10:00 p.m., daily. There is no evidence suggesting this use has been detrimental to surrounding properties or the neighborhood and the change in hours with the change in ABC license type should not prove detrimental given the proposed conditions of approval. Parking and Additional Reduction Currently, there are three open parking spaces on-site that are dedicated to the restaurant. Through Use Permit No. UP2014-009, the Planning Commission determined that the existing three parking spaces were sufficient for the existing restaurant and waived the remaining required parking. However, the analysis in UP2019-009 contained a mathematical error. In that report, the net public area was reported to be 1,171 square feet when in fact there was 1,231 square feet of net public area. UP2019-009 used a parking ratio of one space per 50 square feet of net public area, justified by the fact that the surrounding area included mixed-use buildings and there is a prominence of patrons 7 501 Park Avenue Restaurant (PA2019-238) Planning Commission, April 23, 2020 Page 6 who walk or bike to the restaurant. Using this parking ratio, and the correct net public area, 25 parking spaces should have been required for the restaurant rather than 24 spaces. This additional parking space was not accounted for when the Planning Commission waived the remaining required on-site parking for the restaurant (see Table 1 below). However, as justified in UP2014-009, the restaurant had operated in its current configuration for several years and the parking demand generated by the current restaurant operations had been accommodated within the existing supply offered on-site (three spaces) and on-street parking. An additional two spaces were required for the 276- square-foot take-out coffee component using a standard parking ratio of one space per 250 square feet of gross floor area. The proposed project includes no physical development and no additional parking demand is expected to occur from the proposed changes to the ABC license type or hours of operation. Table 1: Parking Reduction from UP2014-009 UP2014-009 Actual Interior NPA 744 744 Exterior NPA 673 673 25% of Interior NPA 246* 186 Total Parked NPA 1,171* 1,231 Required Restaurant Parking (1 space per 50 SF NPA) 24 spaces 25 spaces Required Take-Out Parking (1 Space per 250 Gross SF) 2 spaces 2 spaces Total Required Parking (Restaurant) 26 spaces 27 spaces Parking Provided (Restaurant) 3 spaces 3 spaces Parking Deficit (Restaurant) 23 spaces 24 spaces Parking Provided (Residential) 2 spaces 1 space Summary Based on an error from UP2014-009, there is an existing deficit of one parking space that exists for the existing restaurant and take-out coffee service. *Mathematical Error Staff believes the continuation of the previous parking reductions remains appropriate for the restaurant since there is no proposed physical expansion to the restaurant. Staff also believes that the reduction of one additional required parking space, which was not previously accounted for, is appropriate. The conditions of the surrounding area remain the same from 2014, when the reduction in parking was previously granted. Balboa Island is a very densely-populated neighborhood where walking and biking is prominent year- round. A parking study conducted by the City in 2008, recognized parking limitations during peak periods. The existing clientele are generally known to be local residents or vacation visitors who walk to the restaurant from the ferry. The take-out coffee bar also encourages walk-up service and quick stops. The nearest public parking facility is located within Balboa Village, which is easily accessible via the ferry. A condition of approval from 8 501 Park Avenue Restaurant (PA2019-238) Planning Commission, April 23, 2020 Page 7 UP2014-009 will remain, which requires the business owner to purchase permits for employees who travel by vehicle to utilize the municipal lots in Balboa Village. Conditional Use Permit Findings Pursuant to Section 20.52.020.F (Findings and Decision) of the Newport Beach Municipal Code, the Planning Commission must make the following findings in order to approve a conditional use permit: 1. The use is consistent with the General Plan and any applicable specific plan; 2. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code; 3. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity; 4. 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 5. 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. As demonstrated in the draft resolution (Attachment No. PC 1), staff believes that sufficient facts exist in support of each finding. The existing restaurant is defined as an Eating and Drinking Establishment, Food Service, No Late Hours with alcohol beverage service. The existing coffee bar, which is separate from the restaurant, is classified as Take-Out Service, Limited. Both uses are consistent with the purpose and intent of the Mixed Use Water Related General Plan land use designation and zoning district, which apply to waterfront properties in which marine-related uses may be intermixed with general commercial, visitor-serving commercial, and residential dwelling units on the upper floors. The restaurant will service the neighborhood by providing dining services as a public convenience to visitors as well as residents to the surrounding area. The service of liquor will complement the principal use of the restaurant and provide an economic opportunity for the property owner to maintain a successful business in a way that may better serve the community and visitors. The proposed hours of operation are appropriate for the neighborhood, as there are no late hours requested. The upgraded ABC License Type in conjunction with an established eating and drinking place does not significantly change the operating characteristics of the existing restaurant, especially with the proposed closing hour of 10:00 p.m., daily. The property has been accommodating an eating and/or drinking establishment with beer and wine 9 501 Park Avenue Restaurant (PA2019-238) Planning Commission, April 23, 2020 Page 8 service since 1977 and there have been no compatibility issues. Additionally, the Police Department has reviewed the request and has no objection with the inclusion of conditions of approval related to alcohol sales. The existing restaurant has proven to be physically suitable in terms of design, location, shape, and size to support the use. The physical characteristics of the property are not changing with the addition of liquor service and expansion of the hours of operation. The property has accommodated similar uses since 1961, and has provided beer and wine service since 1977. The existing restaurant has been operating with the unaccounted deficit of one additional parking space since 2014 without being detrimental to the neighborhood. The use has proven to be physically suitable for the project. Alternatives 1. The Planning Commission may require changes to the project to alleviate any concerns related to the design or the ability to make the required findings. If the changes are substantial, the item should be continued to a future meeting to allow the applicant to make the necessary adjustments and to allow staff to prepare a revised resolution incorporating new findings and/or conditions. 2. If the Planning Commission believes that there are insufficient facts to support the findings for approval, the Planning Commission may deny the application and provide facts in support of denial to be included in the attached draft resolution for denial (Attachment No. PC 2). Environmental Review 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, Chapter 3, because it has no potential to have a significant effect on the environment. The Class 1 exemption includes the ongoing use of existing buildings where there is negligible or no expansion of use. The proposed project involves the continued operation of an existing restaurant use and no construction is proposed. The project includes a modified ABC License and a change in the hours of operation. Public Notice Notice of this hearing was published in the Daily Pilot, mailed to all owners of property within 300 feet of the boundaries of the site (excluding intervening rights-of-way and waterways) including the applicant and posted on the subject property at least 10 days before the scheduled meeting, consistent with the provisions of the Municipal Code. Additionally, the item appeared on the agenda for this meeting, which was posted at City Hall and on the City website. 10 501 Park Avenue Restaurant (PA2019-238) Planning Commission, April 23, 2020 Page 9 Prepared by: Submitted by: __________________________ David S. Lee, Associate Planner ATTACHMENTS PC 1 Draft Resolution with Findings and Conditions PC 2 Draft Resolution for Denial PC 3 Police Department Recommendation PC 4 Public Correspondence PC 5 Project Plans 11 INTENTIONALLY BLANK PAGE12 Attachment PC 1 Draft Resolution with Findings and Conditions 13 INTENTIONALLY BLANK PAGE14 RESOLUTION NO. PC2020-009 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING CONDITIONAL USE PERMIT NO. UP2019-053 TO UPGRADE THE CURRENT ALCOHOLIC BEVERAGE CONTROL LICENSE FROM A TYPE 41 (ON-SALE BEER AND WINE – EATING PLACE) TO A TYPE 47 (ON SALE GENERAL – EATING PLACE) FOR AN EXISTING RESTAURANT AND FOR AN EXTENSION TO THE EXISTING HOURS OF OPERATION AT THE PROPERTY LOCATED AT 501 PARK AVENUE (PA2019-238) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by CLK Island Properties, LLC, (“Applicant”) with respect to property located at 501 Park Avenue, and legally described as Lots 21 and 22 of Block 9, Resubdivision of Section 1, Balboa Island (“Property”), requesting approval of a conditional use permit. 2. The Applicant requests a conditional use permit to upgrade the current Alcoholic Beverage Control (“ABC”) license from a Type 41 (On-Sale Beer and Wine – Eating Place) to a Type 47 (On Sale General – Eating Place) for an existing restaurant, and to extend the hours of operation from 7:00 a.m. to 9:00 p.m., daily, to 7:00 a.m. to 10:00 p.m., daily (“Project”). The Applicant also requests a continuation of a previously approved parking reduction. A coastal development permit is not required as part of this application since the Applicant is not proposing any physical changes to the restaurant which would intensify the use. 3. The Property is designated Mixed Use Water Related (MU-W2) by the General Plan Land Use Element and is located within the Mixed-Use Water Related (MU-W2) Zoning District. 4. The Property is located within the coastal zone. The City of Newport Beach Local Coastal Program Coastal Land Use Plan category is Mixed Use Water (MU-W) and it is located within the Mixed-Use Water Related (MU-W2) Coastal Zone District. 5. A public hearing was held on April 23, 2020, in the City Council Chambers at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the public hearing was given in accordance with California Government Code Section 54950 et seq. (“Ralph M. Brown Act”), Chapter 20.62 and Chapter 21.62 of the Newport Beach Municipal Code (“NBMC”). Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public 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 15 Planning Commission Resolution No. PC2020-009 Page 2 of 17 01-25-19 of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. 2. The Class 1 exemption includes the ongoing use of existing buildings where there is negligible or no expansion of use. The Project involves the continued operation of an existing restaurant use and no construction is proposed. The Project includes an upgraded ABC license and a change in the hours of operation. SECTION 3. REQUIRED FINDINGS. Conditional Use Permit Findings In accordance with Section 20.52.020 (Conditional Use Permits and Minor Use Permits) of the Newport Beach Municipal Code (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 Property as Mixed Use Water Related (MU-W2), which applies to waterfront areas in which marine-related uses may be intermixed with buildings that provide residential units on the upper floors. The continued operation of the existing restaurant will serve visitors and residents of the area. The change of ABC license and extension of hours of operation will not result in a use that is inconsistent with the General Plan designation. 2. The existing restaurant is located on Balboa Island, on the corner of a block that is similarly designated for mixed-use development. The Property is surrounded by residential development across Park Avenue to the north, across Agate Avenue to the west, and across the alley to the south. The existing restaurant will continue to provide a service to the surrounding residents on Balboa Island. 3. There are two (2) existing residential apartment units (1,050 square feet and 813 square feet) located above the restaurant. There is an existing one (1) car garage that exclusively serves the apartments. The residential use on the upper floor is consistent with the General Plan designation. 4. The Property is not a 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; 16 Planning Commission Resolution No. PC2020-009 Page 3 of 17 01-25-19 Facts in Support of Finding: 1. The Property is located in the Mixed-Use Water Related (MU-W2) Zoning District which applies to waterfront properties in which marine-related uses may be intermixed with general commercial, visitor-serving commercial and residential dwelling units on the upper floors. Eating and drinking establishments (including alcohol) are allowed uses, subject to the approval of a use permit. 2. According to historical building records, a restaurant has been in operation at the Property since 1961. The Planning Commission approved Use Permit No. UP1834 on June 30, 1977, which allowed for the restaurant to sell beer and wine. No additional parking was required at that time since there was no increase in intensity to the restaurant. In 1977, the existing restaurant consisted of 360 square feet of net public area (“NPA”) and a 70-square-foot outdoor patio, with hours of operation from 8:00 a.m. to 8:00 p.m., daily. Other uses on the Property included a real estate office, gift shop, art studio, and two (2) residential apartments. At the time of the approval, a two (2) car carport served the apartment units upstairs, while four (4) off-street parking spaces served the commercial uses. 3. Sometime after 1977, the restaurant expanded to the suite previously occupied by a gift shop, totaling 665 square feet of NPA. The restaurant also expanded the outdoor seating area from 70 square feet to 503 square feet. There are no permits on file associated with this expansion of the restaurant. The unauthorized additions were discovered when the owners applied for a use permit for further expansions in 2014. 4. On May 22, 2014, the Planning Commission approved Conditional Use Permit No. UP2014-009 to allow the expansion of the restaurant by 79 square feet of interior NPA (744 square feet total) and outdoor dining patio by 170 square feet (673 square feet total). Included in the Project was a take-out service coffee bar, which occupied an additional 276 square feet. The coffee bar was reviewed as a related yet separate use from the restaurant and required parking was based on the take-out service, limited land use. The restaurant was approved to operate from 8:00 a.m. to 9:00 p.m., daily. As a result of the expansion, it was determined that the Zoning Code required 26 parking spaces, whereas three (3) parking spaces were provided. Due to the heavy walk-up and biking traffic on Balboa Island and its location on Park Avenue, the Planning Commission waived the remaining parking required for the restaurant, citing that the existing on-site parking (three spaces) were sufficient to service the restaurant. At the time of the approval, the two (2) existing residential apartments remained above the restaurant, and the two (2) car carport had been converted into a garage. Although it was described as a two (2) car garage, the garage did not meet the required dimensions to park two (2) cars. Instead, it is likely that the carport was converted to a garage with a width that could accommodate only one (1) car. 5. On May 29, 2015, Director’s Determination No. DD2015-003 authorized the reduction of off-site parking spaces from three (3) spaces to two (2) spaces. During the plan check process for the approved restaurant expansion, errors were discovered on the conceptual plans approved with Conditional Use Permit No. UP2014-009, which showed 17 Planning Commission Resolution No. PC2020-009 Page 4 of 17 01-25-19 that a portion of a parking space would encroach into the public right-of-way. It was determined that it was not feasible to accommodate three (3) parking spaces on-site due to multiple code requirements, including ADA requirements, trash enclosure, and a planter for safety purposes. Therefore, a total of two (2) open parking spaces were provided on-site for the restaurant. 6. Subsequent to the Director’s Determination, the trash enclosure was relocated into a portion of the existing, non-conforming one (1)-car garage, which serves the two (2) residential apartments above the restaurant. The one (1)-car garage still complies with the one (1) car garage interior width standards. As a result of this change, the previous parking space that was lost was restored to have a total of three (3) off-street parking spaces serving the restaurant. There are no permits on file associated with these changes 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 upgraded ABC License Type in conjunction with an established eating and drinking place does not significantly change the operating characteristics of the existing restaurant, especially with the proposed closing hour of 10:00 p.m., daily. The Property has been accommodating an eating and/or drinking establishment with beer and wine service since 1977. There have been no historical compatibility issues since the establishment of the original restaurant to present. 2. The Project is conditioned to prohibit the restaurant from operating as a bar, tavern, or nightclub, thereby reducing potential impacts to the neighborhood. The proposed hours of operation of 7:00 am to 10:00 pm, daily, further reduce the possibility of the restaurant impacting surrounding neighborhoods. Additionally, conditions are included to prohibit amplified sound except background music (i.e. not audible from outside the restaurant) and no live entertainment or dancing is allowed on the premises. Lastly, food service from the regular menu shall be made available to patrons during all business hours. 3. The restaurant contains 744 square feet of interior NPA, 673 square feet of outdoor dining area, and a 276-square-foot take-out coffee bar. There are approximately 41 seats in the interior dining areas, 46 seats in the outdoor dining areas, and five (5) seats in the coffee bar. The relatively small size of the restaurant reduces the likelihood of any potential impacts to the surrounding area. 4. The existing restaurant (with an upgraded license type and extended hours of operation) will be complementary to the other uses in the area. The area includes mixed-use developments and residential properties. The restaurant will continue to provide a service for nearby residents and visitors. 18 Planning Commission Resolution No. PC2020-009 Page 5 of 17 01-25-19 5. The Project provides a trash enclosure outside of the clear parking dimensions and an accessible path of travel for the accessible parking space. The trash enclosure screens trash from the alley, and the top of the dumpster and/or trash bins are fully covered. Finding: D. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities. Facts in Support of Finding: 1. The existing restaurant has proven to be physically suitable in terms of design, location, shape, and size to support the use. The physical characteristics of the Property are not changing with the addition of liquor service and expansion of the hours of operation. The Property has accommodated similar uses since 1961, and has provided beer and wine service since 1977. The use has proven to be physically suitable for the Project. 2. Although the Project provides three (3) parking spaces dedicated to the restaurant, whereas 27 parking spaces are required, the Planning Commission waived the 23 parking spaces through the approval of Conditional Use Permit No. UP2014-009. The restaurant has operated in its current configuration for several years. Many residents and visitors of Balboa Island rely heavily on walking and biking to patronize local establishments. Agate Avenue is easily accessible by residents and visitors walking or biking from other locations on the Island or from Balboa Village via the ferry. Since there is limited parking in the area, it may be assumed that patrons would not drive to only visit the restaurant. Instead, those opting to drive could park at a remote location and walk or bike to the restaurant. 3. Adequate public and emergency vehicle access, public services, and utilities are provided for on Property. The continued use of the restaurant with a Type 47 ABC License and a new closing time of 10:00 p.m. would not impact public services or utilities. The Police Department has reviewed the proposed ABC License Type change and is comfortable with it based on the hours of operation and operational characteristics. The Public Works Department and Life Safety Services (Fire) Division have reviewed the application and have no concerns regarding the operation. 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 19 Planning Commission Resolution No. PC2020-009 Page 6 of 17 01-25-19 possible. Alcohol service is already authorized at the restaurant; only the addition of liquor is new. No alcohol-related calls for service have been reported for the business in 2018 (the most recent data set). Additionally, 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 restaurant will serve the neighborhood by providing a dining option with alcohol service as a public convenience to visitors as well as residents to the surrounding area, which is the intent of the MU-W2 land use designation. The service of alcohol will 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 and visitors. The restaurant will close by 10:00 p.m. and conditions of approval are included to ensure that the business does not operate as a bar, lounge, or nightclub. 3. 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. Off-Street Parking Reduction In 2014, the Property’s parking requirement was reduced from 26 spaces to three (3) spaces, resulting in a reduction of 23 spaces. However, due to a mathematical error, an actual 27 spaces were required while three (3) spaces were provided, resulting in a parking deficit of 24 spaces. Staff is recommending that the Planning Commission waive the additional parking space requirement which was not addressed in Conditional Use Permit No. UP2014-009. In accordance with Section 20.40.110 (Adjustments to Off-Street Parking Requirements) of the NBMC, off-street parking requirements may be reduced with the approval of a conditional use permit in compliance with Section 20.52.020 (Conditional Use Permits and Minor Use Permits) as follows: Finding: F. The applicant has provided sufficient data, including a parking study if required by the Director, to indicate that parking demand will be less than the required number of spaces or that other parking is available (e.g., City parking lot located nearby, on-street parking available, greater than normal walk in trade, mixed-use development); Facts in Support of Finding: 1. The NBMC requires parking for restaurants to be based upon the individual operational characteristics with a parking ratio between one (1) space per 30 to 50 square feet of NPA as a food service use. Due to the mixed use characteristics and prominence of walk-up traffic in the area, a parking ratio of one (1) space per 50 square feet of NPA was used to determine the required parking. The existing establishment contains 744 square feet of interior NPA, and 673 square feet of exterior NPA. The Zoning Code 20 Planning Commission Resolution No. PC2020-009 Page 7 of 17 01-25-19 allows outdoor dining areas up to 25 percent of the interior net public area without an increase in the parking requirement. Therefore, the total net public area is required to be parked is 1,231 square feet, which requires a total of 27 parking spaces. 2. Currently, there are three (3) open parking spaces on-site that are dedicated to the restaurant. Through Use Permit No. UP2014-009, the Planning Commission determined that the existing three (3) parking spaces were sufficient for the existing restaurant and waived the remaining required parking. However, due to a mathematical error, Conditional Use Permit No. UP2014-009 reported that 24 parking spaces were required for the restaurant, when in fact 25 spaces were required. However, as justified in UP2014-009, the restaurant had operated in its current configuration for several years and the parking demand generated by the current restaurant operations had been accommodated within the existing supply offered on-site (three spaces) and on-street parking. The proposed project includes no physical development and no additional parking demand is expected to occur from the proposed changes to the ABC license type or hours of operation. 3. The continuation of the previous parking reduction, is appropriate for the restaurant. Balboa Island is the most densely-populated neighborhood in the County, where walking and biking is prominent year-round. A parking study conducted by the City in 2008, recognized parking limitations during peak periods. The existing clientele are known to be local residents or vacation visitors who walk to the restaurant. The take-out coffee bar also encourages walk-up service or quick stops. The nearest public parking facility is located within Balboa Village, which is easily accessible via the ferry. A condition of approval from Conditional Use Permit No. UP2014-009 will remain, which requires the business owner to purchase parking permits for employees who travel by vehicle to utilize the municipal lots in Balboa Village. 4. The Project is to upgrade the restaurant’s ABC license from a Type 41 to Type 47 license, as well as extend the closing time from 9:00 p.m. to 10:00 p.m., daily. The Applicant is not proposing any changes to the building’s footprint and is not adding any additional floor area. The reduction of an additional parking space is not a result of the proposed Project, but instead to amend an error from Conditional Use Permit No. UP2014-009. Alcohol Sales Finding In accordance with Section 20.48.030 (Alcohol Sales) of the NBMC, a change in type of ABC license requires the following finding in addition to the conditional use permit findings. The facts in support of such finding is set forth: Finding: G. The use is consistent with the purpose and intent of NBMC Section 20.48.030 (Alcohol Sales) of the Zoning Code. 21 Planning Commission Resolution No. PC2020-009 Page 8 of 17 01-25-19 Facts in Support of Finding: In finding that the proposed use is consistent with NBMC 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 Property is located in Reporting District (RD) 42, which covers Balboa Island. The Police Department is required to report offenses of Part One Crimes combined with all arrests for other crimes, both felonies and misdemeanors (except traffic citations) to the Department of Alcoholic Beverage Control. Part One Crimes are the eight (8) most serious crimes defined by the FBI Uniform Crime Report: criminal homicide, rape, robbery, aggravated assault, burglary, larceny-theft, auto theft, and arson. RD 42 is considered a low crime area as compared to other reporting districts in the City. The RD 42 crime count is 93, which is 33 percent under the Citywide crime count average of 134. Since the area does not have a 20 percent greater number of reported crimes than the average number of reported crimes as determined from all crime reporting districts within the City, the area is not found to have undue concentration. In comparison, RD 43 is 70 percent below the Citywide average, RD 41 is 19 percent over the Citywide average, and RD 12 is 19 percent below the Citywide average. 2. The Police Department has reviewed the proposal, provided operating conditions of approval, and has no objection to the change in ABC license for the existing restaurant given that the area does not have undue concentration and there are no late hours. Alcohol is not new to this establishment, but the addition of liquor is a new privilege. The active use permit allows the business to operate until 9:00 p.m., daily. The proposed use permit amendment would expand operating hours to no later than 10:00 p.m. The proposed closing hour is commensurate with other approved restaurants on Balboa Island. 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 42 is lower than neighboring reporting districts. DUI, public intoxication, and liquor law violations make up 29 percent of arrests in RD 42. In comparison, the figures for neighboring RD 43 is 33 percent, RD 41 is 26 percent, and RD 12 is 40 percent. 2. According to the latest data set from 2018 (2019 statistics not available yet), there was one (1) dispatch event for the subject address, leading to one (1) arrest. However, there were no alcohol-related calls for service. 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. 22 Planning Commission Resolution No. PC2020-009 Page 9 of 17 01-25-19 1. The existing restaurant is located on Park Avenue between Agate Avenue and Opal Avenue, and is consistent with the General Plan designation, Mixed Use Water Related (MU-W2). The area includes mixed-use buildings, Balboa Island Park, and residential uses. The Property is not located in close proximity to any daycare centers, hospitals, places of worship, schools, or similar uses that attract minors. However, the restaurant is located approximately 450 feet from the bay and the area attracts a large number of visitors including minors. The nature of the mixed-use block along Agate Avenue is to provide marine-related uses which include a mix of general commercial, visitor-serving commercial, and residential dwelling units on the upper floors. The existing restaurant is surrounded by residential uses across Park Avenue, Agate Avenue, and behind the alley. The Property has supported an eating and/or drinking operation with a beer and wine license since 1961 and is considered an established use in the area. Eating and drinking establishments with incidental alcohol service are common on Balboa Island and the proposed Alcoholic Beverage Control license type is not anticipated to alter the operational characteristics of the restaurant such that it becomes detrimental to the area. The Project does not include any late hours that could potentially impact residential areas. iv. The proximity to other establishments selling alcoholic beverages for either off-site or on- site consumption. 1. There are multiple restaurants on Balboa Island that are authorized for the sale of alcoholic beverages, including The Village Inn, Ciao Italian Restaurant, and Royal Hen. The subject restaurant currently serves beer and wine, without any issues. The addition of liquor service at the restaurant is acceptable to the Police Department, as late hours are not proposed. There is no evidence suggesting this use has been detrimental to surrounding properties or the neighborhood. 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 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. 2. The proposed hours of operation of the establishment will minimize the potential effects of the upgraded ABC License type. The establishment will close by 10:00 p.m., daily, which will ensure the use does not become a late night bar, tavern, or nightclub. 3. The establishment is located within an existing mixed-use and residential area which is developed with other mixed use and residential properties. The upgrade in ABC license in conjunction with an existing restaurant will not alter the existing conditions, but will complement the proposed food service and provide a convenience to customers. 23 Planning Commission Resolution No. PC2020-009 Page 10 of 17 01-25-19 Additional Considerations In accordance with 20.48.090 (Eating and Drinking Establishments), the review authority shall make the following considerations when reviewing an application to allow an eating or drinking place to sell, serve, or give away alcohol: i. Evaluate the potential impacts upon adjacent uses outlined in subsection (F)(3)(a) of this section (Late-Hour Operations). For the purposes of this subsection, “adjacent uses” shall mean those uses within one hundred (100) feet of the proposed use, as measured between the nearest lot lines; 1. See facts in support of Finding G. ii. Consider the proximity to other establishments selling alcoholic beverages for either off- site or on-site consumption; 1. See facts in support of Finding G.iii. iii. Make the findings in Section 20.48.030(C)(3) (alcohol sales—off-sale). 1. See facts in support of Finding G. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission 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 Planning Commission of the City of Newport Beach hereby approves Conditional Use Permit No. UP2019-053, 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 is filed with the City Clerk in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. 4. This resolution supersedes Planning Commission Resolution No. 1945, which upon vesting of the rights authorized by this Conditional Use Permit, shall become null and void. However, the vested rights granted by Resolution No. 1945 shall continue and are incorporated into this Conditional Use Permit. 24 Planning Commission Resolution No. PC2020-009 Page 11 of 17 01-25-19 PASSED, APPROVED, AND ADOPTED THIS 23RD DAY OF APRIL, 2020. AYES: NOES: ABSTAIN: ABSENT: BY:_________________________ Peter Koetting, Chairman BY:_________________________ Lee Lowrey, Secretary 25 Planning Commission Resolution No. PC2020-009 Page 12 of 17 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 Property 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 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 Use Permit. 4. Use Permit No. UP2019-053 shall expire unless exercised within 24 months from the date of approval as specified in Section 20.91.050 of the Newport Beach Municipal Code (“NBMC”), unless an extension is otherwise granted. 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 Conditional Use Permit or the processing of a new Conditional 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. 8. Prior to operating with a Type 47 ABC License and extending the closing hour to 10:00 p.m., the Applicant shall secure all required building permits associated with the previously constructed trash enclosure and garage. 9. Prior to the issuance of a building permit, the Applicant shall submit to the Planning Division an additional copy of the approved architectural plans for inclusion in the Conditional Use Permit. The plans shall be identical to those approved by all City departments for building permit issuance. The approved copy shall include architectural sheets only and shall be reduced in size to 11 inches by 17 inches. The plans shall accurately depict the elements approved by this Conditional Use Permit and shall 26 Planning Commission Resolution No. PC2020-009 Page 13 of 17 01-25-19 highlight the approved elements such that they are readily discernible from other elements of the plans. 10. The Property 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. 11. 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. 12. All noise generated by the Project shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the NBMC. 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 13. 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. 14. No outside paging system shall be utilized in conjunction with this establishment. 15. All trash shall be stored within the building or within dumpsters stored in the trash enclosure (three [3] walls and a self-latching gate) or otherwise screened from view of neighboring properties, except when placed for pick-up by refuse collection agencies. The trash enclosure shall have a decorative solid roof for aesthetic and screening purposes. 16. 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. 17. 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 Property. 27 Planning Commission Resolution No. PC2020-009 Page 14 of 17 01-25-19 18. 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). 19. 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 Use Permit. 20. 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. 21. 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. 22. 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 NBMC. 23. 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 501 Park Avenue Bistro including, but not limited to, Conditional Use Permit No. UP2019-053 (PA2019-238). 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. 28 Planning Commission Resolution No. PC2020-009 Page 15 of 17 01-25-19 Police Department 24. The approval is for an eating and drinking establishment with on-sale alcoholic beverage service. The type of alcoholic beverage license issued by the California Board of Alcoholic Beverage Control shall be Type 47 (On-Sale General – Eating Place). 25. The Applicant shall comply with all federal, state, and local laws, and all conditions of the Alcoholic Beverage License. Material violation of any of those laws or conditions in connection with the use is a violation and may be cause for revocation of the use permit. 26. 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 within 60 days of hire. This training must be updated every three (3) years regardless of certificate expiration date. The certified program must meet the standards of the certifying/licensing body designated by the State of California. The establishment shall comply with the requirements of this section within 60 days of approval. 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. 27. The quarterly gross sales of on-sale 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. 28. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee. 29. The full menu food service shall be available for ordering at all times that the restaurant establishment is open for business. 30. 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 that are clearly visible to the exterior shall constitute a violation of this condition. 31. There shall be no reduced price alcoholic beverage promotions after 9:00 p.m. 32. No games or contests requiring or involving the consumption of alcoholic beverages shall be allowed. 33. Live entertainment and dancing is prohibited. 34. Strict adherence to maximum occupancy limits is required. 29 Planning Commission Resolution No. PC2020-009 Page 16 of 17 01-25-19 35. The operator of the restaurant facility shall be responsible for the control of noise generated by the Project. All noise generated by the Project shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the NBMC. 36. 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 Property. Graffiti shall be removed within 48 hours of written notice from the City. 37. “VIP” passes or other passes to enter the establishment, as well as door charges, cover charges, or any other form of admission charge, including minimum drink order of the sale of drinks is prohibited (excluding charges for prix fixe meals). 38. 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 onsite media broadcast, or any other activities as specified in the NBMC to require such permits. 39. The Applicant shall maintain a security recording system with a 30-day retention and make those recordings available to police upon request. Building Division 40. 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. 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. 42. If required, a grease interceptor shall be installed prior to the establishment opening for business to the satisfaction of the Building Division. 43. A covered wash-out area for refuse containers and kitchen equipment, with minimum useable area dimensions of 36-inches wide, 36-inches deep, and 72-inches high, shall be provided, and the area 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 alternate drainage plan. 30 Planning Commission Resolution No. PC2020-009 Page 17 of 17 01-25-19 Public Works Department 44. All improvements shall be constructed as required by Ordinance and the Public Works Department. 45. All new and existing water services shall be protected by a City-approved backflow assembly. 46. All new and existing sewer laterals shall have a sewer cleanout, installed with a traffic- grade box and cover, located on the public side of the property line. 47. An encroachment permit is required for all activities within the public right-of-way. 48. All improvements shall comply with the City’s sight distance requirement. See City Standard 110-L and Municipal Code 20.30.130. 49. In case of damage done to public improvements surrounding the Property by the private construction, additional reconstruction within the public right-of-way could be required at the discretion of the Public Works Inspector. 50. All on-site drainage shall comply with the latest City Water Quality requirements. 31 INTENTIONALLY BLANK PAGE32 Attachment PC 2 Draft Resolution for Denial 33 INTENTIONALLY BLANK PAGE34 RESOLUTION NO. PC2020-009 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA, DENYING CONDITIONAL USE PERMIT NO. UP2019-053 TO UPGRADE THE CURRENT ALCOHOLIC BEVERAGE CONTROL LICENSE FROM A TYPE 41 (ON-SALE BEER AND WINE – EATING PLACE) TO A TYPE 47 (ON SALE GENERAL – EATING PLACE) FOR AN EXISTING RESTAURANT AND FOR AN EXTENSION TO THE EXISTING HOURS OF OPERATION AT THE PROPERTY LOCATED AT 501 PARK AVENUE (PA2019-238) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by CLK Island Properties, LLC, (“Applicant”) with respect to property located at 501 Park Avenue, and legally described as Lots 21 and 22 of Block 9, Resubdivision of Section 1, Balboa Island (“Property”), requesting approval of a conditional use permit. 2. The Applicant requests a conditional use permit to upgrade the current Alcoholic Beverage Control (ABC) license from a Type 41 (On-Sale Beer and Wine – Eating Place) to a Type 47 (On Sale General – Eating Place) for an existing restaurant, and to extend the hours of operation from 7:00 a.m. to 9:00 p.m., daily, to 7:00 a.m. to 10:00 p.m., daily. The Applicant also requests a continuation of a previously approved parking reduction. A coastal development permit is not required as part of this application since the Applicant is not proposing any physical changes to the restaurant which would intensify the use. 3. The Property is designated Mixed Use Water Related (MU-W2) by the General Plan Land Use Element and is located within the Mixed-Use Water Related (MU-W2) Zoning District. 4. The Property is located within the coastal zone. The City of Newport Beach Local Coastal Program Coastal Land Use Plan category is Mixed Use Water (MU-W) and it is located within the Mixed-Use Water Related (MU-W2) Coastal Zone District. 5. A public hearing was held on April 23, 2020, in the City Council Chambers at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the public hearing was given in accordance with California Government Code Section 54950 et seq. (“Ralph M. Brown Act”), Chapter 20.62 and Chapter 21.62 of the Newport Beach Municipal Code (“NBMC”). Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. Pursuant to Section 15270 of the California Environmental Quality Act (CEQA) Guidelines, projects which a public agency rejects or disapproves are not subject to CEQA review. 35 Planning Commission Resolution No. PC2020-009 Page 2 of 9 01-25-19 SECTION 3. REQUIRED FINDINGS. The planning Commission may approve a use permit only after making each of the five (5) required findings set forth in NBMC Subsection 20.52.020 (F) (Findings and Decision) of the NBMC. In this case, the Planning Commission was unable to make the required findings based upon the following: Findings for Conditional Use Permit: A. The use is consistent with the General Plan and any applicable specific plan; B. The use is consistent with the applicable zoning district and complies with all other applicable provisions of the Zoning Code and Municipal Code; C. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity; D. 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 Not in Support of Findings: 1. The Planning Commission determined, in this case, that the upgrade of ABC license from a Type 41 to a Type 47, and the extension of hours of operation from 7:00 a.m. to 9:00 p.m., daily, to 7:00 a.m. to 10:00 p.m., daily, would not be consistent with the purpose and intent of MU-W2 Zoning and Coastal Zoning District nor Section 20.52.020 (Conditional Use Permits and Minor Use Permits) of the NBMC. 2. The applicant’s request may negatively impact surrounding residential neighborhoods. 3. The restaurant’s additional parking deficit of one space is detrimental to the surrounding neighborhood. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach hereby denies Conditional Use Permit No. UP2019-053 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 14 days following the date this Resolution was adopted unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. 36 Planning Commission Resolution No. PC2020-009 Page 3 of 9 01-25-19 PASSED, APPROVED, AND ADOPTED THIS 23RD DAY OF APRIL, 2020. AYES: NOES: ABSTAIN: ABSENT: BY:_________________________ Peter Koetting, Chairman BY:_________________________ Lee Lowrey, Secretary 37 Planning Commission Resolution No. PC2020-009 Page 4 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, floor plans and building elevations 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 Use Permit. 4. Use Permit No. UP2019-053 shall expire unless exercised within 24 months from the date of approval as specified in Section 20.91.050 of the Newport Beach Municipal Code, unless an extension is otherwise granted. 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 Conditional Use Permit or the processing of a new Conditional 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. 8. Prior to operating with a Type 47 ABC License and extending the closing hour to 10:00 p.m., the Applicant shall secure building permits for the previously unpermitted trash enclosure. 9. Prior to the issuance of a building permit, the Applicant shall submit to the Planning Division an additional copy of the approved architectural plans for inclusion in the Conditional Use Permit. The plans shall be identical to those approved by all City departments for building permit issuance. The approved copy shall include architectural sheets only and shall be reduced in size to 11 inches by 17 inches. The plans shall accurately depict the elements approved by this Conditional Use Permit and shall 38 Planning Commission Resolution No. PC2020-009 Page 5 of 9 01-25-19 highlight the approved elements such that they are readily discernible from other elements of the plans. 10. 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. 11. 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. 12. 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 13. 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. 14. No outside paging system shall be utilized in conjunction with this establishment. 15. All trash shall be stored within the building or within dumpsters stored in the trash enclosure (three [3] walls and a self-latching gate) or otherwise screened from view of neighboring properties, except when placed for pick-up by refuse collection agencies. The trash enclosure shall have a decorative solid roof for aesthetic and screening purposes. 16. 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. 17. 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. 39 Planning Commission Resolution No. PC2020-009 Page 6 of 9 01-25-19 18. 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). 19. 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 Use Permit. 20. 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. 21. 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. 22. 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. 23. 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 501 Park Avenue Bistro including, but not limited to, Conditional Use Permit No. UP2019-053 (PA2019-238). 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. 40 Planning Commission Resolution No. PC2020-009 Page 7 of 9 01-25-19 Police Department 24. The approval is for an eating and drinking establishment with on-sale alcoholic beverage service. The type of alcoholic beverage license issued by the California Board of Alcoholic Beverage Control shall be Type 47 (On-Sale General – Eating Place). 25. The Applicant shall comply with all federal, state, and local laws, and all conditions of the Alcoholic Beverage License. Material violation of any of those laws or conditions in connection with the use is a violation and may be cause for revocation of the use permit. 26. 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 within 60 days of hire. This training must be updated every three (3) years regardless of certificate expiration date. The certified program must meet the standards of the certifying/licensing body designated by the State of California. The establishment shall comply with the requirements of this section within 60 days of approval. 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. 27. The quarterly gross sales of on-sale 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. 28. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee. 29. The full menu food service shall be available for ordering at all times that the restaurant establishment is open for business. 30. 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 that are clearly visible to the exterior shall constitute a violation of this condition. 31. There shall be no reduced price alcoholic beverage promotions after 9:00 p.m. 32. No games or contests requiring or involving the consumption of alcoholic beverages shall be allowed. 33. Live entertainment and dancing is prohibited. 34. Strict adherence to maximum occupancy limits is required. 41 Planning Commission Resolution No. PC2020-009 Page 8 of 9 01-25-19 35. 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. 36. 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. 37. “VIP” passes or other passes to enter the establishment, as well as door charges, cover charges, or any other form of admission charge, including minimum drink order of the sale of drinks is prohibited (excluding charges for prix fixe meals). 38. 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 onsite media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. 39. The Applicant shall maintain a security recording system with a 30-day retention and make those recordings available to police upon request. Building Division 40. 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. 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. 42. If required, a grease interceptor shall be installed prior to the establishment opening for business to the satisfaction of the Building Division. 43. A covered wash-out area for refuse containers and kitchen equipment, with minimum useable area dimensions of 36-inches wide, 36-inches deep, and 72-inches high, shall be provided, and the area 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 alternate drainage plan. 42 Planning Commission Resolution No. PC2020-009 Page 9 of 9 01-25-19 Public Works Department 44. All improvements shall be constructed as required by Ordinance and the Public Works Department. 45. All new and existing water services shall be protected by a City-approved backflow assembly. 46. All new and existing sewer laterals shall have a sewer cleanout, installed with a traffic- grade box and cover, located on the public side of the property line. 47. An encroachment permit is required for all activities within the public right-of-way. 48. All improvements shall comply with the City’s sight distance requirement. See City Standard 110-L and Municipal Code 20.30.130. 49. In case of damage done to public improvements surrounding the development site by the private construction, additional reconstruction within the public right-of-way could be required at the discretion of the Public Works Inspector. 50. All on-site drainage shall comply with the latest City Water Quality requirements. 43 INTENTIONALLY BLANK PAGE44 Attachment PC 3 Police Department Recommendation 45 INTENTIONALLY BLANK PAGE46 47 48 49 50 51 INTENTIONALLY BLANK PAGE52 Attachment PC 4 Public Correspondence 53 INTENTIONALLY BLANK PAGE54 From: Sue Ellen Waters <sueellenwaters@gmail.com> Sent: Tuesday, March 10, 2020 5:15 PM To: Lee, David Subject: 501 Park Ave. Balboa Island [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Dear David, Project File No. PA 2019-238 I am a resident across the street from 501 Park Ave Bistro. I am completely against their request to close at 10 pm. They currently close at 9 pm but it’s never 9 pm if they are busy. And it will never be 10 pm if they are busy. So at 10, 10:30 or 11 pm we will still hear them. We hear them at 6:30 am when they are preparing to open. Day and night the TV is blasting, the tables are being set, the staff is shouting, the chairs are being drug across the cement and the patrons are loud and louder as the evening progresses. This restaurant has absolutely no consideration or respect for their neighbors. Balboa Island is a family island with a family environment. Do we really need a restaurant and full bar open past 9 pm? I would appreciate your committees consideration in not approving their request to extend their hours. Sincerely, Sue Ellen Waters 310-413-7877 131 Agate Ave Balboa Island, Ca 55 INTENTIONALLY BLANK PAGE56 Attachment PC 5 Project Plans 57 INTENTIONALLY BLANK PAGE58 PA2019-238Attachment PC 5 - Project Plans59 From:Lee, David To:Rodriguez, Clarivel; Lee, Amanda Subject:FW: Project file: PA2019-238 Date:Monday, April 20, 2020 1:40:28 PM -----Original Message----- From: Peter A Paley <petepaley@gmail.com> Sent: Monday, April 20, 2020 10:32 AM To: Lee, David <dlee@newportbeachca.gov>; petepaley@gmail.com Paley <petepaley@gmail.com> Subject: Project file: PA2019-238 [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Mr Lee I received another notice of Public Hearing for 4/23/2020. As the country is still in Quarantine, with Stay At Home orders, I find the meeting unconstitutional. The Public deserves the right to attend the meeting to see and hear the presentation of how and why the upgrade of the ABC license is a positive thing for our community. In light of the COVID-19 ongoing threat to our health, I recommend the meeting be rescheduled to a later date when all parties can attend. Perhaps in September 2020 if we are allowed to have meetings with more than a handful of attendees. Keep in mind, most of the property owners on the island are Senior Citizens, and it could be a health situation to attend a meeting before the virus is totally contained. I would appreciate an email response to this email ASAP. Thank you, Peter Paley 201 Topaz Ave Balboa Island, Ca Planning Commission - April 23, 2020 Item No. 4a Additional Materials Received 501 Park Avenue Restaurant (PA2019-238) April 23, 2020, Planning Commission Item 4 Comments These comments on a Newport Beach Planning Commission agenda item are submitted by: Jim Mosher ( jimmosher@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229). Item No. 4. 501 PARK AVENUE RESTAURANT (PA2019-238) General Comments In addition to the primary question of whether approval of the new liquor license would be harmful to the community, staff asks the Planning Commission to also reconsider parking: specifically whether there is a problem with waiving one additional off-street space for the restaurant/coffee shop use above what seems to have been waived when the PC approved the present configuration in 2014. This raises two primary questions in my mind: 1.In calculating the parking requirement for the restaurant use, staff differentiates between a portion of the floor area regarded as sit-down area (with a higher parking requirement), and a portion it regards as take-out area, which staff treats as a separate use with a lower parking requirement. Is this a standard procedure supported by the code and applied uniformly to all food-serving establishments? Or is this a special rule applied here at someone’s discretion? 2.Since this is described as a mixed use structure with two dwelling units on the second floor, how are the residential parking needs being factored into the overall analysis of the site? It appears the residential parking spaces have been lost entirely, with the original two-space carport being converted into a one-car garage, and then, according to the project Site & Floor Plan on handwritten page 59, the entirety of the garage having been taken over as a restaurant storage area (as well as a trash/utilities area). That is a bit disturbing since Table 3-10 of the current NBMC Chapter 20.40 requires for a “Two-Unit Dwelling” “2 per unit; 1 in a garage and 1 covered or in a garage” – or 4 spaces. Is their loss or non-existence part of the reduction being requested? Also disturbing, it is not entirely clear the presently proposed approval carries forward conditions imposed “in lieu” of the code-required parking management plan in 2014 in an attempt to ensure at least some off-street parking spaces are available for restaurant customers (the findings say it does, but the conditions are not listed). Additional General Comments 1.Based on the “Background” related on staff report handwritten pages 5 and 6, this seems a facility with a history of making alterations to structures and uses without benefit of City permits. Although page 7 assures the Commission that “A coastal development permit is not required because there is no physical expansion or intensification of use” related to the present action, it is not clear if CDP’s were obtained Planning Commission - April 23, 2020 Item No. 4b Additional Materials Received 501 Park Avenue Restaurant (PA2019-238) April 23, 2020, PC agenda Item 4 comments - Jim Mosher Page 2 of 5 for the previous changes that did involve physical expansion and intensification1 of use. If City permits were not obtained, I would guess CDP’s were not obtained either and, unless the City wishes to condone unpermitted activity, after-the-fact Coastal Act evaluation may be required. 2. Unless confined solely to alcohol service, the claim (staff report handwritten page 7 and repeated in the resolution on page 23) that “There is no evidence suggesting this use has been detrimental to surrounding properties or the neighborhood” seems contradicted by the letter from a neighbor attached as PC 4 (Public Correspondence, page 55). Staff may have reasons for discounting the evidence, but there does seem to be evidence of detriment to consider. 3. Table 1 (on handwritten page 8, setting forth the parking calculation) would be clearer if it listed the “25% of Interior NPA” item as a negative number – that is, a number to be subtracted from the total physical net public area (interior and exterior) to obtain the “Total Parked NPA.”2 4. Given how woefully under-parked this use seems to be compared to the City’s standards, it is hardly comforting to read in the text following Table 1 that “A parking study conducted by the City in 2008, recognized parking limitations during peak periods” (apparently referring to Balboa Island as a whole). What kind of “limitations” were observed? And considering that in 2014 this use was expanded by adding both 249 sf to the NPA of the restaurant (nominally requiring at least 5 new spaces) and 276 sf3 of take-out coffee bar (requiring another 2), wouldn’t it be prudent to re-evaluate the present configuration before signing off on it again? Or is staff implying the approval in 2014 precludes re-evaluation of anything other than the single space overlooked then? 5. Given the endemic parking problems on Balboa Island noted in 2008, I can easily imagine Island natives and their guests choosing to walk to this restaurant, perhaps justifying a continuing parking reduction. It seems less plausible to me that for people coming from afar their first choice would be to look for parking in the public lots on the Balboa Peninsula, then take the ferry to dine here. Once parked on the Peninsula side, they would seem to me to have a large number of more convenient restaurants to choose from. 1 The present request to extend hours would seem to me an intensification of use. It could reasonably be expected to increase the total number of trips to the site over the course of a day. 2 The calculation represents staff’s interpretation of Table 3-10 in NBMC Sec. 20.40.040, which says off- street parking is to be provided at the rate of “1 [space] per 30—50 sq. ft. of net public area, including outdoor dining areas exceeding 25% of the interior net public area or 1,000 sq. ft., whichever is less.” It might be noted that the NBMC wording is ambiguous as to whether the 25% is to be seen as a credit for an area for which no parking is required (and, therefore, to be subtracted from the total area) or a threshold beyond which the entire outdoor area is to counted. Also, the 2014 “mathematical error” was not an error in arithmetic, but rather an error in giving credit for 25% of the entire interior NPA, including the 276 sf coffee bar, and not just the sit-down restaurant part. 3 Per the present handwritten page 5. The 2014 approval said the coffee bar added 239 sf of NPA plus half of a 83 sf service counter. Planning Commission - April 23, 2020 Item No. 4b Additional Materials Received 501 Park Avenue Restaurant (PA2019-238) April 23, 2020, PC agenda Item 4 comments - Jim Mosher Page 3 of 5 6. If the Commission is trying to respond to what it sees as a non-standard parking environment, would a requirement for some off-street golf cart parking spots (of which there might be room for a larger number than of conventional spaces) better serve the Balboa Island patrons? 7. Reiterating the earlier general comment, nothing I can find in the staff report or the proposed resolution addresses the appropriate parking requirement for the residential uses on the second floor. For off-street parking requirements in the MU-W2 zoning district, Table 2-11 in Title 20 (Section 20.22.030) directs readers to Chapter 20.40. But Chapter 20.40 does not appear to contain any special directions for mixed use structures. Staff has calculated and summed the parking requirement for the sit-down restaurant and the take-out coffee bar as distinct uses with a total requirement of 27 spaces. If the same logic is applied to the two apartments, they would seem to fall in the “Two-Unit Dwelling” category of Table 3-10 with a requirement of “2 per unit; 1 in a garage and 1 covered or in a garage.” Thus, the total requirement for the site would appear to be at least 31 spaces, of which 2 are supposed to be in garages and 2 more covered. Particularly in view of the applicant’s apparent assignment of the garage for restaurant storage use, doesn’t this unmet residential demand undermine the assumption that the 3 on-site open spaces will be available to food customers? 8. I am unable to find any explanation of the significance of the five red dots on the police report map (handwritten page 51). Also, in the green table on the same page, it is strange to see the number of “Active Licenses” at 501 Park Avenue listed as “0.” And, there is no indication of where the neighboring reporting districts are, or if they have similar populations. Specific Comments Regarding the Proposed Resolution of Approval: Page 15, Section 1.1: “An application was filed by CLK Island Properties, LLC, (“Applicant”), doing business as 501 Park Avenue Bistro, with respect to property located at 501 Park Avenue, and legally described as Lots 21 and 22 of Block 9, Resubdivision of Section 1, Balboa Island (“Property”), requesting approval of a conditional use permit.” [(?) Without this, the name “501 Park Avenue Bistro” appears mysteriously and without any prior explanation in Condition 23 on page 28. Confusingly, the Site Plan & Floor Plan on page 59 describes the project as “501 Park Avenue Restaurant.” Still more confusingly, in 2014, the present configuration was called the “Park Avenue Café” (PA2014-047). ] Page 15, Section 1.2: “A coastal development permit is not required as part of this application since the Applicant is not proposing any physical changes to the restaurant which would intensify the use.” [Both the Coastal Act (specifically, Public Resources Code Section 30106) and our Local Coastal Program Implementation Plan (NBMC Chapter 21.70) define “development” for which a permit is required to include both physical changes and anything that creates a “change in the density or intensity of use of land.” There is no requirement I can find for the change in intensity to be the result of a physical change.] Planning Commission - April 23, 2020 Item No. 4b Additional Materials Received 501 Park Avenue Restaurant (PA2019-238) April 23, 2020, PC agenda Item 4 comments - Jim Mosher Page 4 of 5 Page 15, Section 1.5: “A public hearing was held on April 23, 2020, in the Council Chambers at 100 Civic Center Drive, Newport Beach by teleconference. A notice of time, place and purpose of the public hearing was given in accordance with California Government Code Section 54950 et seq. (“Ralph M. Brown Act”) as modified by Governor Newsom’s Executive Order N-25-2, and Chapter 20.62 and Chapter 21.62 of the Newport Beach Municipal Code (“NBMC”).” [Regarding the last suggested correction, this item does not appear to have been noticed as a Coastal Act hearing. Regarding the first, the notice of the meeting leaves unclear what, if any, part of the meeting will actually be conducted from or in the Council Chambers. Since it says the public will be barred access to the Chambers, when this resolution is read in future years it seems both inaccurate and deceptive for the resolution to suggest “A public hearing was held … in the Council Chambers” – when, in fact, no such thing may, apparently, have taken place. Should some part actually occur in the Chambers, a possible alternative would be to say: “A public hearing was held on April 23, 2020, in the Council Chambers at 100 Civic Center Drive, Newport Beach, with attendance by teleconference.”] Page 16, Section 3.A.3: “There is an existing one (1) car garage that exclusively serves the apartments.” [Unless there is a second garage not depicted in the plans on page 59, this seems inconsistent with the applicant’s labeling of the area as “GARAGE STORAGE” impliedly related to the restaurant application.] Page 18, Section 3.C.1: “There have been no historical compatibility issues since the establishment of the original restaurant to present.” [As noted above, in Attachment PC 4 (Public Correspondence, page 55), a neighbor complains of irritation from noise and from the restaurant not closing at the approved hour.] Page 18, Section 3.D.1: “Although the Project provides three (3) parking spaces dedicated to the restaurant, whereas 27 parking spaces are required, the Planning Commission waived the 23 parking spaces through the approval of Conditional Use Permit No. UP2014-009.” [23 + 3 = 26. As noted in subsection F, the present approval requires waiving one additional space (possibly more if the lack of parking for the apartments is included).] “Since there is limited parking in the area, it may be assumed that patrons would not drive to only visit the restaurant. Instead, those opting to drive could park at a remote location and walk or bike to the restaurant.” [Given the insufficiency of both on- and (in this case) off-street parking, this may express the reality, but is it good planning? Or is it reason to continue deviating so greatly from current standards?] Pages 20-21, Section 3.F.1: “The existing establishment restaurant contains 744 square feet of interior NPA, and 673 square feet of exterior NPA. The Zoning Code allows outdoor dining areas up to 25 percent of the interior net public area without an increase in the parking requirement. Therefore, the total net public area that is required to be parked is 1,231 square feet, which requires a total of 27 25 parking spaces plus 2 for the 276 square foot coffee bar.” Page 21, Section 3.F.3: “A condition of approval from Conditional Use Permit No. UP2014- 009 will remain, which requires the business owner to purchase parking permits for employees who travel by vehicle to utilize the municipal lots in Balboa Village.” [It is not Planning Commission - April 23, 2020 Item No. 4b Additional Materials Received 501 Park Avenue Restaurant (PA2019-238) April 23, 2020, PC agenda Item 4 comments - Jim Mosher Page 5 of 5 obvious how this happens since Section 4.4 (on page 24) says “This resolution supersedes Planning Commission Resolution No. 1945” and the current resolution appears to contain no such condition. In contrast, CUP No. UP2014-009 contained condition “11. Restaurant employees shall park their automobiles in the municipal lots on the Balboa Peninsula. The applicant or operator of the facility shall purchase parking permits for eight employees on an annual basis for the municipal lots, and shall direct employees to park in said parking lot.”4 Also not obviously carried forward is a former condition that required “10. The existing parking lot shall be maintained with approved traffic markers or painted white lines not less than four inches wide. All three parking spaces on the site shall be accessible and useable for vehicular parking at all times.”] Page 23, Section 3.G.iii.1: In connection with the appropriateness of liquor sales/consumption, the resolution fails to mention the property’s close proximity to the Balboa Island Park and Carroll Beek Community Center, about six doors away on Agate – something the PC is specifically required to consider. Pages 26 and 28: Planning Division Conditions 4 and 22 (regarding expiration of the permit if not exercised) appear duplicative. Page 30: Police Department Conditions 35 (noise) and 36 (trash) appear largely duplicative of similar Planning Division Conditions, specifically Conditions 12 (noise) and 17 (trash). 4 Former Condition 11 was offered in lieu of the NBMC Sec. 20.40.110.B.1.b requirement that parking reductions can be approved only with a parking management plan. The authority by which the PC could substitute a condition for a plan was not explained. Planning Commission - April 23, 2020 Item No. 4b Additional Materials Received 501 Park Avenue Restaurant (PA2019-238) From:Lee, David To:Rodriguez, Clarivel; Lee, Amanda Subject:FW: David Lee. - please confirm you have received this email. As I am not able to attend the meeting, I think reading the email to the restaurant applicants and other concerned citizens. People should know this is a contested issue. Thank you. Date:Thursday, April 23, 2020 8:08:20 AM From: Peter Paley <paleypeter@icloud.com>  Sent: Wednesday, April 22, 2020 2:11 PM To: Lee, David <dlee@newportbeachca.gov>; petepaley@gmail.com Paley <petepaley@gmail.com> Subject: David Lee. - please confirm you have received this email. As I am not able to attend the meeting, I think reading the email to the restaurant applicants and other concerned citizens. People should know this is a contested issue. Thank you. [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. For city council members Re: File No PA2019-238 As a property owner for 25 years, about a block from the 501 location of the proposed establishment... we have seen changes with the use of the buildings there. Not all positive. The current use has many daily deliveries for their business, plus daily trash bin service, pressure washers and other vendors. This is terrific for their clientele, but not for island residents, who now have to endure more traffic,noise and parking issues. The restaurant has two parking spaces. Therefore parking of current and increased business depends on and impacts parking around Agate and Park Ave. The restaurant is not a property owner so they take advantage of all the surrounding property owners who actually pay property taxes. The restaurant leased the space and does business with a beer and wine license in place. They should not have based their success upon future Type 47 license or extending hours. These two changes will make that business an unbearable neighbor. Off island customers will have vehicles to park, make noise leaving the establishment intoxicated and create hazardous driving issues driving to their next location. The next permit after the addition of hard liquor, will be for longer hours and live music on the patio, and we will be suffering the same problems as the Village Inn neighbors have currently. Planning Commission - April 23, 2020 Item No. 4c Additional Materials Received 501 Park Avenue Restaurant (PA2019-238) If island residents are drinking there, and walking home intoxicated... we will sooner or later, have people throwing up and urinating in the bushes. It happens now from people coming across the ferry and will increase with allowing these changes to be permitted. In addition, there will be more employees which equates to more cars parking on our streets. The current employees usually park a block or so away to allow customers to park near the restaurant. Therefore, we have to contend with less parking around our home... where we pay taxes and deserve to park near our home. Even though you are permitted to have City Council meetings during this Covid-19 isolation period, does not mean an issue like this should be decided at this time. I do not have the ability to Live Stream the meeting and call in to give my opinion. This should be decided at a traditional meeting where the applicants present their terms and conditions proposed, and the citizens of Newport Beach can make a well informed and well considered decision. I request the Newport Beach City Council to DENY the requests to make the proposed changes. There is no upside for the community. Thank you, Peter PALEY 201 Topaz Ave Sent from my iPad Planning Commission - April 23, 2020 Item No. 4c Additional Materials Received 501 Park Avenue Restaurant (PA2019-238) From:Howard Kay To:Planning Commissioners Subject:501 Park Avenue Date:Thursday, April 23, 2020 8:02:49 PM [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. We are the owners of 127 Pearl Avenue on Balboa Island. We highly recommend the City of Newport Beach grant 501 Park Avenue the Type 47 permit. Thank you. Howard Ka Planning Commission - April 23, 2020 Item No. 4d Additional Materials Received after deadline 501 Park Avenue Restaurant (PA2019-238) Planning Commission Public Hearing April 23, 2020501 Park Avenue Bistro Conditional Use Permit Planning Commission - April 23, 2020 Item No. 4e Additional Materials Presented 501 Park Avenue Restaurant (PA2019-238) Request Upgrade ABC License from Type 41 (Beer and Wine) to Type 47 (On Sale General) Extend hours of operation to 7 am to 10 pm Currently closes at 9 pm Continuation of previously approved parking waiver (2014 Use Permit) Community Development Department -Planning Division 2 Planning Commission - April 23, 2020 Item No. 4e Additional Materials Presented 501 Park Avenue Restaurant (PA2019-238) Vicinity Map Community Development Department -Planning Division 3 Restaurant Est. 1961 Existing apartments above Planning Commission - April 23, 2020 Item No. 4e Additional Materials Presented 501 Park Avenue Restaurant (PA2019-238) Surrounding Uses Community Development Department -Planning Division 4 Subject Property (Mixed-Use) Ferry Park Planning Commission - April 23, 2020 Item No. 4e Additional Materials Presented 501 Park Avenue Restaurant (PA2019-238) Site Plan Community Development Department -Planning Division 5 Planning Commission - April 23, 2020 Item No. 4e Additional Materials Presented 501 Park Avenue Restaurant (PA2019-238) Community Development Department -Planning Division 6 Existing Proposed Alcohol License Type 41 (Beer and Wine)Type 47 (On Sale General) Hours of Operation 7:00 AM –9:00 PM 7:00 AM –10:00 PM Net Public Area Interior Exterior 744 sq. ft. 673 sq. ft. No Change Take Out Coffee Bar 276 sq. ft.No Change Number of Seats 95 seats 86 seats Restaurant Parking 3 spaces No Change Planning Commission - April 23, 2020 Item No. 4e Additional Materials Presented 501 Park Avenue Restaurant (PA2019-238) Parking 3 parking spaces for restaurant 27 required by Zoning Code Mathematical error in 2014 Use Permit Waived 23 spaces 1 unaccounted space Continuance of previous parking waiver Waive one additional space Commission found 3 spaces sufficient in 2014 No increase in floor area or seats No additional parking required Community Development Department -Planning Division 7 Planning Commission - April 23, 2020 Item No. 4e Additional Materials Presented 501 Park Avenue Restaurant (PA2019-238) Parking Balboa Island is densely populated area Walking and biking is prominent Serves local residential neighborhood Community Development Department -Planning Division 8 Planning Commission - April 23, 2020 Item No. 4e Additional Materials Presented 501 Park Avenue Restaurant (PA2019-238) Alcohol & Hours Upgrade from ABC Type 41 (Beer and Wine) to Type 47 (Liquor) License Police has no objections Reporting District 42 (Balboa Island) No undue concentration Low crime area No late hours associated Community Development Department -Planning Division 9 Planning Commission - April 23, 2020 Item No. 4e Additional Materials Presented 501 Park Avenue Restaurant (PA2019-238) Findings Consistent with Mixed-Use General Plan and Zoning Designations Public convenience to surrounding neighborhood and visitors Operated with current building and parking configuration without detriment Community Development Department -Planning Division 10 Planning Commission - April 23, 2020 Item No. 4e Additional Materials Presented 501 Park Avenue Restaurant (PA2019-238) Additional Conditions 1.The existing parking lot shall be maintained with the approved traffic markers or painted white lines not less than four-inches wide. All three parking spaces on the site shall be accessible and useable for vehicular parking at all times. 2.Restaurant employees shall park their automobiles in the municipal lots on the Balboa Peninsula. The applicant or operator of the facility shall purchase parking permits for eight employees on an annual basis for the municipal lots, and shall direct employees to park in said lot. Community Development Department -Planning Division 11 Planning Commission - April 23, 2020 Item No. 4e Additional Materials Presented 501 Park Avenue Restaurant (PA2019-238) Recommended Action Conduct a public hearing Find project exempt from CEQA under Class 1 (Existing Facilities) Approve Conditional Use Permit No. 2019-053 Supersedes Planning Commission Resolution No. 1945 Community Development Department -Planning Division 12 Planning Commission - April 23, 2020 Item No. 4e Additional Materials Presented 501 Park Avenue Restaurant (PA2019-238) For more information Contact Questions?David S. Lee 949-644-3225 dlee@newportbeachca.gov www.newportbeachca.gov Community Development Department -Planning Division 13 Planning Commission - April 23, 2020 Item No. 4e Additional Materials Presented 501 Park Avenue Restaurant (PA2019-238)