HomeMy WebLinkAbout2.0_Baja Sharkeez Remodel_PA2017-255CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
June 18, 2020
Agenda Item No. 2
SUBJECT: Baja Sharkeez Remodel (PA2017-255)
▪Conditional Use Permit No. UP2017-034
▪Coastal Development Permit No. CD2019-054
SITE LOCATION: 110 – 114 McFadden Place
APPLICANT: Baja Sharkeez
OWNER: Michael Fazzi
PLANNER: Liz Westmoreland, Associate Planner
949-644-3234, lwestmoreland@newportbeachca.gov
PROJECT SUMMARY
A conditional use permit and coastal development permit to allow modifications to an
existing food service eating and drinking establishment, Baja Sharkeez, with late hours
and a Type 47 (On Sale General Eating Place) Alcoholic Beverage Control license. Baja
Sharkeez would expand into the adjacent restaurant at 110 McFadden (formerly Sol Grill)
creating a new dining area.
The 110 McFadden space is currently permitted to operate from 11:00 a.m. to 11:00 pm.,
daily. This space would continue to close at 11:00 p.m. consistent with existing use permit
conditions, but the Applicant is requesting increased hours in the morning to serve
breakfast starting at 9:00 a.m. The expanded dining area would operate with the existing
Type 47 license. The 114 McFadden space is currently permitted to operate from 11:00
a.m. to 2:00 a.m., daily. Proposed hours of operation would be increased in the morning
to allow breakfast service starting at 9:00 a.m. and decrease d at night to close at 1:30
a.m. The existing use permit for 114 McFadden allows live entertainment and dancing,
which would be eliminated if the application is approved.
The project includes a continuation of historical parking waivers. The establishments
currently operate under Use Permit Nos. 1783 and 3034, which would be superseded if
this application is approved.
Pursuant to Newport Beach Municipal Code (NBMC) 5.25, the operation as described
requires the owner/operator to obtain an Operator License issued by the Chief of Police
because the business includes on-sale alcohol service in conjunction with late hours (after
11:00 p.m.).
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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. PC2020-021 approving Conditional Use Permit No. UP2017-
034 and Coastal Development Permit No. CD2019-054 (Attachment No. PC 1).
VICINITY MAP
GENERAL PLAN ZONING
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LOCATION GENERAL PLAN ZONING CURRENT USE
ON-SITE Mixed Use Water 2 (MU-
W2)
Mixed-Use Water Related
(MU-W2)
Baja Sharkeez, former Sol Grill
(vacant)
NORTH MU-W2 MU-W2 Office, parking lot
SOUTH MU-W2, Multiple
Residential (RM)
MU-W2, Multiple
Residential (RM)
Mixed use buildings, retail,
restaurants, multi-family
residential
EAST MU-W2 MU-W2 Parking lot, multi-family
residential
WEST Visitor Serving
Commercial (CV)
Commercial Visitor-
Serving (CV)
McFadden Square, municipal
parking lot, restaurants, visitor
accommodations
INTRODUCTION
Project Setting and Background
The subject property is located within the McFadden Square area of the Balboa Peninsula
near the Newport Pier. Surrounding land uses include multi-family residential units across
Court Avenue to the south; retail, coffee shop, and food service businesses with
residential above to the west; McFadden Place to the north; and a small office building
and parking lot to the east across the alley. The 137-parking-space McFadden Square
municipal parking lot is located adjacent to the project site to the north. Also located within
walking distance is the Newport Pier municipal parking lot which contains approximately
260 parking spaces.
The existing structure on the subject property includes two restaurant tenant spaces, 110
and 114 McFadden Place. The existing Baja Sharkeez restaurant is located at 114
McFadden Place and will be referred to as “114 McFadden” herein. The former Sol Grill
restaurant is located in a vacant tenant space attached and adjacent to Baja Sharkeez. It
will be referred to as “110 McFadden”. According to Orange County Assessor records,
the building was originally constructed around 1932. Restaurants and bars serving
alcohol have occupied the building since the early 1970s.
The two restaurant tenant spaces are currently regulated by separate use permits and
have no physical interior access between one space and the other. The former Sol Grill
was regulated by UP No. 3034 (as amended) and Baja Sharkeez is regulated by UP No.
1783 (as amended). Both tenant spaces have been occupied by several different
operators. 110 McFadden has historically been occupied by a market, take-out
restaurant, and most recently by a full-service restaurant, Sol Grill, which closed in mid-
2018. 114 McFadden has been historically occupied by nightclubs, bars, and restaurants.
In the 1990s, Baja Sharkeez moved into the space under the existing use permit. Although
the ABC License was updated to reflect the eating and drinking establishment’s operating
characteristics (i.e. no longer a bar/nightclub), the use permit has not been updated since
1985 and it still allows live entertainment and dancing. Both tenant spaces share an on-
site parking lot at the rear that contains 10 parking spaces.
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Project Description
The applicant, Baja Sharkeez, proposes the following changes to the existing eating and
drinking establishment:
a.Remodel the 110 McFadden restaurant space to modernize the building and
create an attached dining room to serve 114 McFadden. Both spaces would be
combined to form one restaurant.
b.The remodel includes installation of a retractable roof over the 110 McFadden
space and open-air patio areas.
c.Remove existing restriction regarding maximum allowable net public area during
the day (prior to 9 p.m.) at 114 McFadden to allow full use of the space;
d.The existing 110 and 114 McFadden restaurant hours would be modified to allow
increased hours in the morning (i.e. opening of 9:00 a.m. instead of 11:00 a.m.).
e.No new or additional late hours are proposed. 110 McFadden would retain the
existing closing time of 11:00 p.m. (i.e no late hours).
f.The existing late night operating hours at 114 McFadden would be reduced to
match the existing Alcoholic Beverage Control (ABC) License conditions.
Proposed operations would cease at 1:30 am where the existing use permit for
114 McFadden allows operations until 2:00 a.m.
g.The existing 110 McFadden restaurant’s Type 41 Alcoholic Beverage Control
License (ABC) would be eliminated and the new dining room would operate
pursuant to a Type 47 license.
h.The onsite parking lot in the rear would be restriped to retain the existing 10 parking
spaces. Any existing unpermitted encroachments or storage areas in the parking lot
would be removed prior to implementation of the project and remain clear for vehicle
parking.
Table 1 Existing and Proposed Operations provides a summary of existing and proposed
conditions for both tenant spaces.
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Table 1 Existing and Proposed Operations
Existing
114 McFadden
Proposed
114 McFadden
Existing
110 McFadden
Proposed
110 McFadden
Hours of
Operation
11:00 am – 2:00 am 9:00 am – 1:30 am 11:00 am - 11:00 pm 9:00 am -11:00 pm
Net Public Area
(NPA)
960 sf NPA daytime
~1,421 sf NPA
nighttime
1,368 sf NPA ~445 sf NPA1 445 sf NPA
Number of Seats 125 125 26 292
Outdoor Patio
Area
Yes Yes No Yes3
ABC License
Type
Type 47 Type 47 Type 41 Type 47
1.Unknown, prior use measured in gross sf, but the floor plan appears similar in terms of public area.
2.Proposed seating is an estimate. Some seating will be provided as couches and not individual seats.
3.Proposed as an indoor-outdoor space with retractable roof and large pull up windows/doors. Not a
separate patio.
DISCUSSION
General Plan, Zoning Code, Local Coastal Program
The Property is located in the Mixed-Use Water Related (“MU-W2”) Zoning District and
Mixed-Use Water 2 (MU-W2) land use designation of the General Plan. The MU-W2
designation 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 and proposed use of the site as a restaurant is a
permitted use in the zoning district with approval of a conditional use permit. No residential
use currently exists on site and none is proposed.
The project complies with all development standards of the General Plan, Zoning Code,
and CLUP including floor area, setbacks, and height, and no deviations are requested
with the exception of the historical parking waivers previously approved for both
restaurants.
Land Use Policy LU6.8.2 (Component Districts) of the General Plan notes “McFadden
Square should be emphasized as [one of the] primary activity centers of the northern portion
of the Peninsula.” The existing and requested operation of Baja Sharkeez, a resident and
visitor serving use, is consistent with this policy.
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Land Use Policy LU6.12.1 (Priority Uses) of the General Plan and Land Use Policy 2.1.5-7
of the Coastal Land Use Plan state that one of the goals for the McFadden Square area is
to “accommodate visitor- and local-serving uses that take advantage of McFadden Square’s
waterfront setting including specialty retail, restaurants, and small scale overnight
accommodations”. The proposed project is consistent with this policy because it will help to
ensure the continued operation of a visitor-serving establishment and occupancy of a vacant
storefront.
Remodel
No construction is proposed within the existing 114 McFadden space, other than building
a door in the adjoining wall to combine the two spaces. The proposed remodel at 110
McFadden would include the removal of the existing solid wall along Court Avenue, which
would be replaced with a patio area, glass barriers, and windows. The roof would be
removed and replaced with a retractable roof. Overall, the design would create an open-
air dining experience to complement the existing Baja Sharkeez operation. The 110
McFadden building height would be increased from 17 feet 5 inches to approximately 19
feet, to match the existing roofline of 114 McFadden. Any proposed rooftop equipment
would be screened from view of pedestrians and motorists in the vicinity per zoning code
requirements.
Because the overall occupancy of the restaurant would increase (due to merging the two
tenant spaces), Building and Life Safety Services (Fire) Divisions have conditioned the
project to include the installation of a fire sprinkler system where none currently exists.
The doors at 110 McFadden will also be designed and conditioned to meet egress
requirements for the larger space. Lastly, the property will be updated to meet additional
accessibility requirements, such as the creation of an accessible parking space in the rear
parking lot and substantial upgrades to the 110 McFadden restroom. The building
upgrades would provide significant benefits and additional protection to patrons,
employees, and the local neighborhood.
Operating Characteristics and Hours of Operation
Each tenant space would have different operating hours and related operational
characteristics. Those related to alcoholic beverage service and occupancy are
particularly important to the Newport Beach Police Department (NBPD) and Fire Marshal.
On a typical day, the proposed operations will generally occur as follows:
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9:00 am
•Both tenant spaces open for business.
9:00 pm
•All doors, windows, patio areas (114 McFadden), and retractable roof (110
McFadden) will close except for egress and ingress.
10:30 pm
•“Last call” for alcohol service at 110 McFadden
•No new patrons may enter the 110 McFadden space.
•Employees advise existing customers in the 110 McFadden space of the upcoming
closing time of 11:00 pm. Patrons may leave the building entirely or enter 114
McFadden through the connecting door.
•Manager on duty restricts occupancy at 114 McFadden to 141 persons in order to
accommodate existing patrons transferring from 110 to 114 McFadden. Restrict
new entries as needed to ensure maximum occupancy is not exceeded for 114
McFadden.
11:00 pm
•Any remaining patrons exit 110 McFadden.
•Connecting door is closed.
•110 McFadden closes.
•Cleaning operations will occur after 11:00 p.m.
~ 1:00 am
•Last call at 114 McFadden
1:30 am
•No further sales, service, or consumption of alcoholic beverages allowed.
•Remaining patrons begin to leave the premises.
Parking
The McFadden Square area is adequately served by the two adjacent municipal lots
throughout the year and the close proximity to multiple commercial uses and coastal
resources will result in shared trips to the project site area. In keeping with historical
conditions, walk-up and pass-by patron traffic is common in this area of the peninsula.
Visitors to this area are typically going to the beach or bay and have multiple destinations,
such as the beach, pier, recreation, shopping, and dining, especially during the summer
season.
The current parking requirement for a food service, eating and drinking establishment,
parking is a rate of one parking space per 30 to 50 square feet (sf) of net public area
(NPA), as determined by a use permit. In this case staff believes a parking rate of one
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space per 50 sf of NPA is appropriate based on several physical design and operational
characteristics.
Ride sharing is common for businesses that serve alcohol, resulting in fewer parked cars.
According to an OC Register Article dated December 29, 2017, ride share data revealed
that in Orange County Baja Sharkeez was the number 2 top location for Lyft and number
8 top location for Uber. Additionally, the proposed conditions of approval would prohibit
live entertainment and dancing, which also lowers occupancy and resulting parking
demand. Like most restaurants in the area, many local residents and visitors walk or bike
to McFadden Square and the surrounding areas. Staff believes that in most cases the
restaurant would not be considered a destination use for self-drivers and the proposed
changes would not change the parking situation in the area.
Historically, required parking spaces for 110 and 114 McFadden have been reduced or
waived as part of prior use permit approvals. Due to changes in the methodology for
calculating required parking spaces since the 70s and 80s, the proposed project will result
in an overall net decrease in required parking spaces, even with the additional dining area
during the daytime.
The applicant is requesting a continuation of historical parking waivers and will provide
10 onsite parking spaces and continued payment of 22 in-lieu parking space fees.
Although the in-lieu parking fee program has been discontinued, existing participants
must continue to pay the fees. The current fee is $150.00 per in lieu space per year and
records indicate that the owner has paid the required fees for at least 22 years. Pursuant
to Section 20.40.130 of the NBMC, these fees are paid to the Citywide Parking
Improvement Trust Fund. The property also has a non-conforming parking credit of four
spaces based on the original construction of the building in the 1960s (prior to off -street
parking requirements).
Findings and Considerations
Conditional Use Permit Findings
In accordance with Section 20.52.020 (Conditional Use Permits and Minor Use Permits),
the Planning Commission must make the following findings for approval of 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 the 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.
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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.
5.Operation of the use at the location proposed would not be detrimental to the
harmonious and orderly growth of the City, or endanger, jeopardize, or otherwise
constitute a hazard to the public convenience, health, interest, safety, or general
welfare of persons residing or working in the neighborhood of the proposed use.
Staff believes sufficient facts exist in support of each finding. The continued operation of
a restaurant is consistent with the purpose and intent of the Mixed-Use Water 2 (MU-W2)
land use designation of the General Plan. The MU-W2 designation 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 can be expected to be found in this area and are complementary
to the surrounding commercial uses.
The project has been reviewed and conditioned to ensure that potential conflicts with the
surrounding land uses are minimized to the extent possible to maintain a healthy
environment for both residents and businesses. The additional use permit restrictions will
help make the establishment more compatible with uses in the McFadden Square area
and make implementation clearer for employees. Having uniform ABC and CUP
conditions will make enforcement more effective for Code Enforcement and the Police
Department. The current use permit allows live entertainment and dancing, where the
proposed use permit will prohibit live entertainment or dancing, thereby reducing the
probability for the establishment to evolve into a nightclub.
The establishment’s location, in the heart of a commercial area within the Balboa
Peninsula, is appropriate for an operation with the recommended conditions of approval.
Alcohol service will continue to be provided as a convenience to the public and the
additional hours of operation in the morning would provide an additional choice for
patrons. Conditions of approval are included to limit alcohol service in the morning from
9:00 a.m. to 11:00 a.m. For example, service of “bottomless” beverages is prohibited, and
any alcoholic beverage purchase will also require the purchase of food. Staff has included
a condition that requires the Planning Commission to review the use after one year of
operation with a focus on morning alcohol sales to ensure compatibility with surrounding
uses.
As conditioned, the proposed project will continue to comply with Zoning Code standards
for eating and drinking establishments and solid waste storage.
Based on the parking information provided and the characteristics of the area, staff
believes that a reduction of the required off-street parking is appropriate. It should be
noted that no on-site parking is provided for many uses in the immediate area, where the
property provides 10 parking spaces.
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To help ensure that continued operation of the establishment does not create a
detrimental impact during late hours, the operator will be required to secure an operator
license and to take reasonable steps to discourage and correct objectionable conditions
that constitute a nuisance to areas surrounding the establishment. Should the operator
be unable to abide by the conditions of approval or prevent objectionable conditions from
occurring, the NBPD will have the authority to modify, suspend, or revoke the operator’s
ability to maintain late-hour operations past 11 p.m. NBPD could also reduce the occupant
load or modify other operating conditions.
Alcoholic Beverage Sales Considerations
When reviewing an application to allow an eating or drinking establishment to sell, serve,
or give away alcohol, NBMC Section 20.48.090 (Eating and Drinking Establishments)
requires the Planning Commission to evaluate the potential impacts upon adjacent uses
(within 100 feet as measured between the nearest lot lines) and to consider the proximity
to other establishments selling alcoholic beverages for either off-site or on-site
consumption. The adjacent uses include mixed-use, residential, restaurants, and retail.
The draft resolution includes conditions of approval to minimize negative impacts that the
proposed eating and drinking establishment may have to surrounding residential uses
and ensure that the use remains compatible with the surrounding community.
In order to approve a use permit for alcohol sales, the Planning Commission must also
find that the use is consistent with the purpose and intent of Section 20.48.030 (Alcohol
Sales). In doing so, the following must be considered:
a)The crime rate in the reporting district and adjacent reporting districts as
compared to other areas in the City.
b)The numbers of alcohol-related calls for service, crimes, or arrests in the
reporting district and in adjacent reporting districts.
c)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.
d)The proximity to other establishments selling alcoholic beverages for either off-
site or on-site consumption.
e)Whether or not the proposed amendment will resolve any current objectionable
conditions.
The establishment is located within Reporting District 15, which includes most of the
commercial establishments for the Balboa Peninsula between the Newport Boulevard on-
ramp to Coast Highway and 20th Street. For a map of the City of Newport Beach Reporting
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Districts, see Attachment No. PC 5. Operational characteristics, including the more
restrictive hours at night, are conditioned to maintain and improve compatibility with the
surrounding land uses.
While the area does have a high concentration of alcohol licenses, both establishments
are approved for alcoholic beverage service and historically have held a valid ABC
license. Therefore, the project will not result in any increase in the number of alcohol
licenses but rather a decrease in one license. The new portion of the restaurant (110
McFadden) would keep the location’s existing closing hour of 11 p.m. daily. Therefore,
there is not an increase in area used during late hours (after 11 p.m.). The new space will
enhance the dining experience without increasing allo wed occupancy of the space,
therefore not further contributing to the burden on police services during late night hours.
The service of alcoholic beverages provides menu options for customers and potentially
enhances the economic viability of the business, while the updated CUP and Operator
License will provide greater enforcement tools.
A memorandum that includes alcohol-related statistics from 2017 is provided in Attachment
No. PC 3. The existing late-night operations at 114 McFadden would be reduced as part of
the project. The existing 114 McFadden use permit allows operations until 2:00 a.m., where
the proposed project would cease operations at 1:30 a.m. The NBPD does not object to
the operational changes with the proposed restrictions on the operational hours and an
improved security plan. Additionally, the updated CUP will prohibit live entertainment and
dancing allowed by the existing use permit. Although the current operator doesn’t offer
these activities, a future operator would otherwise have that option. A detailed discussion
of these considerations is provided in the draft resolution for approval (Attachment No. PC
1).
Late Hours Considerations
Pursuant to NBMC Section 20.48.090 (Eating and Drinking Establishments, the Planning
Commission must consider the following potential impacts upon adjacent or nearby uses
when reviewing an application to allow late-hour operations:
1.Noise from music, dancing, and voices associated with allowed indoor or
outdoor uses and activities;
2.High levels of lighting and illumination;
3.Increased pedestrian and vehicular traffic activity during late and early morning
hours;
4.Increased trash and recycling collection activities;
5.Occupancy loads of the use; and
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6.Any other factors that may affect adjacent or nearby uses.
As discussed, no new late-night hours of operation are proposed for 110 McFadden and
114 McFadden would be required to close at 1:30 a.m. where a 2:00 a.m. closing is currently
allowed. Thus, conditions would not be substantially different, as currently experienced from
surrounding land uses including the residential buildings at the rear the property and across
Court Avenue. The proposed use permit would also prohibit live entertainment (including
DJs) and dancing, thereby reducing potential noise impacts to the area. No outdoor
activities are proposed, and patron queuing would continue to occur in the front of the
building adjacent to McFadden Place. Additionally, the existing and proposed outdoor
dining areas and new windows/doors would be closed by 9:00 pm, capturing sound from
voices and background music inside the building.
Residential and other uses to the rear of the property are separated from the business by
Court Avenue and the on-site parking lot which creates a buffer. No new parking stalls
will be created as part of the parking lot restriping, and it will mainly be used by
employees. There are no attractions or key destinations that would draw patrons towards
the back of the building or along Court Avenue. Pedestrians and vehicles are typically
found in front of the building along McFadden Place, the municipal parking lot, and other
uses in the vicinity such as shops, bars and eating and drinking establishments. No new
lighting is proposed on the building at this time. There is existing and adequate outdoor
lighting within the adjacent municipal parking lot located at the front of the establishment.
Conditions of approval allow the Community Development Director to review lighting
onsite should any issues arise with spillover onto adjacent sites. The existing trash
enclosure would be updated to improve the appearance and functionality, and to keep
the door from swinging into the drive aisles and parking spaces.
Coastal Development Permit
In accordance with Section 21.52.015 (Coastal Development Permits, Findings and
Decision) of the NBMC, the Planning Commission must make the following findings for
approval of a coastal development permit:
A.Conforms to all applicable sections of the certified Local Coastal Program.
B.Conforms with the public access and public recreation policies of Chapter 3 of the
Coastal Act if the project is located between the nearest public road and the sea
or shoreline of any body of water located within the coastal zone .
The proposed remodel and operational changes require a coastal development permit
due to the potential intensification of use (e.g. additional seating and hours of operation,
combining occupancy of the two tenant spaces) and the continuation of historical parking
waivers. The proposed project complies with applicable development standards of the
Local Coastal Program (LCP) including, but not limited to, floor area limitation, setbacks,
and building height.
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As currently developed, the existing restaurant building and other businesses are located
within the view shed of the beach and shoreline. Public views are oriented to the south
and west away from the existing building. The proposed commercial remodel complies
with all applicable Local Coastal Program (LCP) development standards and maintains a
building envelope consistent with the existing neighborhood pattern of development. The
increased height of the building does not affect public views because there are no public
views through the project site and existing building and because the existing building
envelope will be maintained, any public views of the beach or ocean from the subject site
would be unchanged. Additionally, the project does not contain any unique features that
could degrade the visual quality of the coastal zone.
The proposed use requires a waiver of one parking space, where historical use permits
authorized a waiver of 22 parking spaces. Therefore, any potential impacts related to the
increase in net public area during the daytime would be negligible. Similarly, the additional
hours of operation requested in the morning (from 9 a.m. to 11 a.m.) are not peak hours
for public access, but a breakfast service will benefit visitors and residents alike.
Summary
The NBPD has reviewed the proposal and has no objection to the Project, subject to
appropriate conditions of approval. The existing use permit was approved in the 1980s and
the associated conditions are antiquated. The updated use permit will allow the ABC
Conditions and City’s use permit conditions to work in concert, where they currently
conflict in some cases. The updated CUP and Operator License provide additional tools
for the NBPD to control the use should objectionable activities occur.
Staff believes the CUP and CDP findings for approval can be made and the facts in support
of the required findings are presented in the draft resolution (Attachment No. PC 1). The
elimination of one alcohol license, a reduction in late night hours and the provision of
breakfast for visitors and residents is a welcome change. The project also requires building
upgrades including upgraded restrooms and the addition of fire sprinklers, which will help
improve public safety and provide a benefit to the surrounding area.
Alternatives
Staff believes the findings for approval can be made and is recommending approval of
the project as proposed. However, the following alternatives are available to the Planning
Commission:
1.The Planning Commission may suggest specific operational changes that are
necessary to alleviate any concerns. If any additional requested changes are
substantial, the item could be continued to a future meeting. Should the Planning
Commission choose to do so, staff will return with a revised resolution
incorporating new findings and/or conditions; or
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2.If the Planning Commission believes there are insufficient facts to support the
findings for approval, the Planning Commission should deny the application and
provide facts in support of denial that would be included in a resolution for denial.
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 allows interior or exterior alterations involving interior partitions,
plumbing and electrical conveyances. The Class 1 exemption includes the operation, repair,
maintenance, permitting, leasing, licensing, or minor alteration of existing public or private
structures, facilities, mechanical equipment, or topographical features, involving negligible
or no expansion of use. The Project includes the installation of a door between the two
restaurant spaces and a remodel of 110 McFadden to create a retractable roof, a patio with
windows, as well as interior improvements and operational adjustments related to business
hours and alcoholic beverage service. No new floor area is proposed. The Project also
requires improvements to install a sprinkler system for both spaces.
Public Notice
Notice of this hearing was published in the Daily Pilot, mailed to all owners and residential
occupants 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.
Prepared by: Submitted by:
______________________________
Liz Westmoreland, Associate Planner
ATTACHMENTS
PC 1 Draft Resolution for Approval
PC 2 Police Department Memorandum
PC 3 Project plans
16
Attachment No. PC 1
Draft Resolution for Approval
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RESOLUTION NO. PC2020-021
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, APPROVING
CONDITIONAL USE PERMIT NO. UP2017-034 AND COASTAL
DEVELOPMENT PERMIT NO. CD2019-054 TO ALLOW THE
CONTINUATION OF HISTORICAL PARKING WAIVERS, MODIFY
HOURS OF OPERATION, REMOVE RESTRICTIONS
REGARDING ALLOWABLE NET PUBLIC AREA DURING THE
DAYTIME, AND MERGE WITH ADJACENT RESTAURANT
SPACE AT THE PROPERTY LOCATED AT 110 AND 114
MCFADDEN PLACE (PA2017-255)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1.An application was filed by Baja Sharkeez (“Applicant”) and Michael Fazzi (“Owner”) with
respect to property located at 110 and 114 McFadden Square, and legally described as
Parcel 1 of Block 128 of Resubdivision 493 (respectively referred to as “110 McFadden”
and “114 McFadden” and collectively referred to as “Property”), requesting approval of a
conditional use permit, coastal development permit, and a continuation of historical parking
waivers.
2.Baja Sharkeez restaurant is located at 114 McFadden. The former Sol Grill restaurant is
located in a vacant tenant space attached and adjacent to 110 McFadden. Applicant
proposes the following changes to 110 McFadden and 114 McFadden:
a.Remodel the 110 McFadden restaurant space to modernize the building and create
an attached dining room to serve 114 McFadden;
b.Install a retractable roof over the 110 McFadden space and open-air patio areas;
c.Remove existing restriction regarding maximum allowable net public area during
the day (prior to 9 p.m.) at 114 McFadden to allow full use of the space;
d.Modify the opening hour for 110 McFadden and 114 McFadden from 11:00 a.m. to
9:00 a.m.;
e.No modification to the closing hour for 110 McFadden which is 11:00 p.m.;
f.Modify the closing hour for 114 McFadden from 2:00 a.m. to 1:30 a.m. to match the
existing Alcoholic Beverage Control (“ABC”) license conditions;
g.Modify the existing 110 McFadden ABC license from a Type 41 On- Sale Beer and
Wine Eating Place, to a Type 47 On-Sale General – Eating Place to match the
existing ABC License at 114 McFadden; and
h.Restripe the onsite parking lot in the rear to retain the existing ten (10) parking
spaces. Any existing unpermitted encroachments or storage areas in the parking
lot would be removed prior to implementation of the project and remain clear for
vehicle parking (collectively the “Project”).
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3.The Property is designated Mixed-Use Water 2 (MU-W2) by the City of Newport Beach
General Plan (“General Plan”) Land Use Element and is located within the Mixed-Use
Water (MU-W2) Zoning District.
4.The Property is located within the coastal zone. The City of Newport Beach Local Coast
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 Zoning District.
5.A public hearing was held on June 18, 2020, in the 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
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 allows interior or exterior alterations involving interior partiti ons,
plumbing and electrical conveyances. The Class 1 exemption includes the operation,
repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public
or private structures, facilities, mechanical equipment, or topographical fe atures,
involving negligible or no expansion of use . The Project includes the installation of a
door between the two restaurant spaces and a remodel of 110 McFadden to create a
retractable roof, a patio with windows, as well as interior improvements and operational
adjustments related to business hours and alcoholic beverage service. No new floor
area is proposed. The Project also requires improvements to install a sprinkler system
for both spaces.
SECTION 3. REQUIRED FINDINGS.
Alcohol Sales
In accordance with Subsection 20.48.030(C)(3) (Alcohol Sales) of the NBMC, the following
findings and facts in support of such findings are set forth:
Finding:
A.The use is consistent with the purpose and intent of Section 20.48.030 (Alcohol Sales) of
the Zoning Code.
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Facts in Support of Finding:
In finding that the Project is consistent with Section 20.48.030 of the NBMC, 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 15 (“RD 15”). The Newport Beach Police
Department is required to report offenses of criminal homicide, forcible rape, robbery,
aggravated assault, burglary, larceny, theft, and motor vehicle theft (all Part I crimes),
combined with all arrests for other crimes, both felonies and misdemea nors (except
traffic citations) to the ABC. RD 15 is the highest crime area in Newport Beach. This
reporting district is reported to ABC as a high crime area as compared to other
reporting districts in the City. The RD’s Crime Count is 614, which is 357 percent
over the City-wide crime count average of 140. The higher crime rate is largely due
to the number of visitors to the Balboa Peninsula, the high concentration of
restaurants, and the high ratio of non-residential to residential uses clustered in the
commercial and mixed-use districts. The McFadden Square area has historically
been a business and recreation hub for residents and tourists, drawing a large
number of visitors year-round but particularly in the summer months.
2.Since RD 15 has 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 found to have undue concentration. In comparison, neighboring RD
13 (8th Street to 20th Street) is 23 percent above the City-wide average, RD 12 (B
Street to 8th Street) is 9 percent above, and RD 16 (37th Street to 54th Street) is 91
percent above. Of the 38 RDs in Newport Beach, 11 are reported to ABC as high
crime areas for 2019.
3.While the area does have a high concentration of alcohol licenses, both
establishments are approved for alcoholic beverage service and historically have
held a valid ABC license. Therefore, the Project will not result in any increase in the
number of alcohol licenses. The new portion of the restaurant (110 McFadden) would
keep the location’s existing closing hour of 11 p.m. daily . Therefore, there is not an
increase in area used during late hours (after 11 p.m.). The new space will enhance
the dining experience without increasing allowed occupancy, therefore not further
contributing to the burden on police services during late night hours. The service of
alcoholic beverages provides menu options for customers and potentially enhances
the economic viability of the business, while the Conditional Use Permit (“CUP”) and
Operator License will provide greater enforcement options.
4.The Newport Beach Police Department (“NBPD”) has reviewed the proposal and has
no objection to the Project, subject to appropriate conditions of approval. The
operation of the establishment includes the approved floor plan, business hours that
are more restrictive at night than the current hours identified in the use permit, an
improved security plan, and the requirement to obtain an operator license.
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Additionally, the updated use permit will allow the ABC Conditions and City’s use
permit conditions to work in concert, where they currently conflict in some cases. The
Operator License provides an additional tool for the NBPD to control the use,
especially should objectionable activities occur at the site.
ii.The numbers of alcohol-related calls for service, crimes, or arrests in the reporting district
and in adjacent reporting districts.
1.The highest volume crime in this area is simple assault, which may be indicative of
an overconsumption of alcohol. The highest volume arrest in the area is Public
Intoxication. DUI, Public Intoxication, and liquor law violations make up 32 percent
of arrests in this reporting district. In comparison, the figure for neighboring RD 13 is
26 percent, RD 12 is 28 percent, and RD 16 is 29 percent.
2.RD 15 has a higher number of arrests recorded in 201 9, compared to adjacent
reporting districts. From January 1, 2019, through December 31, 2019, the NBPD
reported 505 arrests in RD 15. Of those, 27 were Part I arrests. There were eight (8)
arrests at this Property; however, not every arrest was related to the business and
may have been related to a dispatch event in the McFadden Square vicinity. Of the
eight (8) arrests, two (2) were Part I Crime Arrests and six were Part II Crime Arrests.
These statistics include both properties located at 110 McFadden and 114 McFadden.
3.The NBPD reviewed the application and does not anticipate any significant increase
in crime or alcohol-related incidents with the approval of this application subject to
the proposed conditions of approval, which include more restrictive hours of
operation at night and prohibits live entertainment and dancing.
iii.The proximity of the establishment to residential zoning districts, day care centers,
hospitals, park and recreation facilities, places of worship, schools, other similar uses, and
any uses that attract minors.
1.The Project is located in a mixed-use zoning district which allows for residential uses
when intermixed with nonresidential uses. The nearest residential zoning district and
associated residential units are located approximately 50 feet west of the Property
across Court Avenue. The existing and proposed front patios as well as the
entrances to the business are oriented away from the residences. The existing
residential units face the on-site parking lot in the rear of the building.
2.The nearest recreational facilities, the beach and Newport Pier, are located
approximately 200 feet to the southwest of the Property. The nearest church, Our
Lady of Mount Carmel Church, is located approximately 0.5 miles to the east of the
subject property along West Balboa Boulevard. The nearest school, Newport
Elementary School, is located 0.7 miles to the east of the subject property along
West Balboa Boulevard. The nearest daycare center, Children’s Center by the Sea,
is approximately 0.5 miles to the east along West Balboa Boulevard. The Project use
is surrounded by other commercial, retail, and office uses on the ground level.
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3.The Balboa Peninsula is generally characterized by a high number of visitors, in
which commercial and residential zoning districts are lo cated in close proximity to
one another and eating and drinking establishments with alcohol service are
common. The CUP conditions of approval that eliminate live entertainment and
dancing, in conjunction with Operator License conditions of approval will help
minimize nuisances that the establishment could have to surrounding uses. This will
help to ensure that the use remains compatible with the surrounding community.
iv.The proximity to other establishments selling alcoholic beverages for either off -site or on-
site consumption.
1.The subject census tract has an approximate population of 5,726 residents with 91
active alcohol licenses, which equates to a per capita ratio of one (1) license for
every 63 residents. Per the Business and Professions code, we compa re this per
capita ratio to Orange County’s on-sale per capita ratio of one (1) license for every
467 residents. This location meets the legal criteria for undue concentration.
2.The per capita ratio of one license for every 63 residents is higher than all adjacent
Census Tracts and the average City-wide ratio. This is due to the higher
concentration of commercial land uses, many of them visitor-serving, in McFadden
Square, Lido Marina Village and Cannery Village, and lower number of residential
population in the RD 15 area. Nearby establishments selling alcohol include the
Taco Bell Cantina, Stag Bar, Dory Deli, Blue Beet, Beach Ball, Blackie’s and several
others located in the McFadden Square area.
3.While the license-to-resident ratio is higher than average and the Property is located
in close proximity to other establishments selling alcoholic beverages, the physical
and operational characteristics of the establishment would make the continuation of
alcoholic beverage sales appropriate at this location.
v.Whether or not the proposed amendment will resolve any current objectionable conditions.
1.No objectionable conditions are presently occurring at the Property.
2.The existing use permit for 114 McFadden has not been updated since 1985, and the
conditions of approval are antiquated. Further, the existing permit conditions do not
reflect restrictions identified in the conditions of approval for ABC’s Type 47 License.
The most notable discrepancies between the ABC license and the current CUP are:
1) the ABC license prohibits live entertainment whereas the CUP does not; and 2) the
ABC license requires the establishment to cease serving and allowing patrons to
consume alcohol at 1:30 a.m. whereas the CUP does not. The ABC license conditions
also allow the business to operate starting at 9 a.m. where the CUP allows operations
starting at 11 a.m. This use permit includes the ABC conditions of approval so that
both documents work in unison, making compliance less confusing and easier to
accomplish for the business owner and employees.
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3.A restaurant and bar have been operating at the Property since the early 1970s. The
building has been remodeled several times to accommodate different tenants. As part
of the Project, the building will be updated to meet current building and safety code
requirements including the installation of a fire sprinkler system.
4.All owners, managers, and employees selling alcohol will be required to complete a
certified training program in responsible methods and skills for selling alcoholic
beverages within 60 days of hire (or for existing staff, within 60 days of approval of this
use permit). Approval of this application will require the operator to obtain an Operator
License pursuant to Chapter 5.25 (Operator License for Establishments Offering
Alcoholic Beverages for On-Site Consumption in Combination with Late Hours,
Entertainment, and/or Dance) of the NBMC. The Operator License will provide
enhanced tools to control noise, loitering, litter, disorderly conduct, parking/circulation
and other potential disturbances that could result from the use, and will provide the PD
with means to modify, suspend, or revoke the operator’s ability to maintain late-hour
operations.
Conditional Use Permit
In accordance with Section 20.52.020(F) (Use Permit, Required Findings) of the NBMC, the
following findings and facts in support of such findings are set forth:
Finding:
B.The use is consistent with the General Plan and any applicable specific plan.
Facts in Support of Finding:
1.The General Plan land use designation for this site is Mixed-Use Water 2 (MU-W2). The
MU-W2 designation 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 eating and drinking establishments with
alcohol service and late hours are allowed uses. Such uses can be expected to be found
in this area and are complementary to the surrounding commercial and residential uses.
2.The existing building includes both the 110 McFadden and 114 McFadden tenant spaces
on a single parcel. The Project currently complies with the maximum floor area ratio
allowed for the site and will not result in an increase in the floor area ratio; therefore, it is
consistent with the Land Use Element development limitations.
3.The Project remodel and operational changes are for a use that is consistent with General
Plan Land Use Policy LU6.8.2 (Component Districts), which emphasizes that McFadden
Square should be utilized as one of the primary activity centers within the City. The
modifications will allow residents and visitors to enjoy the existing eating and drinking
establishment as a visitor- and local-serving convenience.
4.The Property is not part of a specific plan area.
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Finding:
C.The use is allowed within the applicable zoning district and complies with all other
applicable provisions of the Zoning Code and the Municipal Code.
Facts in Support of Finding:
1.The Property is located in the Mixed-Use Water Related (MU-W2) Zoning District. The
MU-W2 designation 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 and proposed use of the site as a
restaurant is a permitted use in the zoning d istrict with approval of a conditional use
permit.
2.Restaurants have been operating at the Property since the 1970s. The applicant
requests increased hours of operation in the morning and full use of the dining area
during the daytime. The Project also includes a remodel to merge the two (2) tenant
spaces to allow operation as a single restaurant. The Project complies with all
development standards and no deviations are requested with the exception of the
historical parking waivers.
3.The McFadden Square area is adequately served by the two (2) adjacent municipal lots
throughout most of the year and the close proximity to multiple commercial uses and
coastal resources will result in shared trips to the project site area. In keeping with
historical conditions, walk-up and pass-by patron traffic is common in this area of the
peninsula. Visitors to this area are typically going to the beach or bay and have multiple
destinations on the peninsula, such as recreation, shopping, and dining , especially
during the summer season.
4.Under current parking requirements for a food service, eating and drinking
establishment, parking is required at a rate of one (1) parking space per 30 to 50 square
feet (sf) of net public area (NPA), as determined by a use permit. In this case, a parking
rate of one space per 50 sf of NPA is appropriate for the proposed use based on several
physical design and operational characteristics. Ride sharing is common for businesses
that serve alcohol, resulting in fewer parked cars. The proposed conditions of approval
would prohibit live entertainment and dancing, which also lowers the demand. The
restaurant would not be considered a destination use for drivers. Lastly, local residents
and visitors in the area will also walk or bike to the restaurant.
5.Historically, required parking spaces for 110 McFadden and 114 McFadden have been
reduced or waived as part of prior use permit approvals. Due to changes in the
methodology for calculating required parking spaces since the 70s and 80s, the Project
will result in an overall net decrease in parking spaces required by Title 20 and Title 21
to serve the Property. The Applicant is requesting a continuation of historical parking
waivers for the Property and will provide 10 onsite spaces as well the payment of 22 in-
lieu parking fees as authorized by Sections 20.40.130 and 21.40.130 of the NBMC. The
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Property also has a non-conforming parking credit of four (4) spaces based on the
original construction of the building in th e 1960s (prior to off-street parking
requirements). The current NBMC requires nine (9) spaces for 110 McFadden and 28
spaces for 114 McFadden, for a total requirement of 37 spaces, where 36 spaces are
provided. Prior use permits reduced required parking by a total of 22 spaces, where
current standards only require a reduction of one (1) space, resulting in a net reduction
of 21 spaces. Therefore, the proposed expansion of net public area during the daytime
at 114 McFadden is not expected to noticeably change the parking demand in the
McFadden Square area.
6.The Project has been conditioned to provide a trash enclosure in the rear parking lot,
outside of required drive aisles. The existing door swing of the trash enclosure will be
modified to no longer encroach into the drive aisle. The trash enclosure will screen trash
from Court Avenue and maintain water quality by covering the top of the dumpster. All
of the existing outdoor storage and miscellaneous materials in the rear parking lot will
be removed prior to building permit final inspection.
Finding:
D.The design, location, size, and operating characteristics of the use are compatible with
the allowed uses in the vicinity.
Facts in Support of Finding:
1.The operation of the eating and drinking establishment will be restricted such that alcohol
service, sales, and consumption would end at 1:30 a.m., whereas it was previously allowed
to operate until 2 a.m. without any restrictions. The closing hour is compatible with other
late-night eating and drinking establishments in the area. The NBPD has reviewed the
Project and is supportive of the reduced late hour operation and an improved security plan.
2.As the City does not experience significant alcohol related crime during the morning hours,
the additional two (2) hours of breakfast service would be negligible. There are several
eating and drinking establishments in the vicinity that serve breakfast such as Dory Deli,
Seaside Donuts Bakery, Newport Coffee Company, and Banzai Bowls. The additional
morning hours would be consistent with other local businesses and serve residents and
visitors.
3.The existing use permit for 114 McFadden restricts net public area during the daytime
(prior to 9 p.m.) primarily due to parking concerns. The proposed increase in net public
area (NPA) during the daytime from 960 to 1,368 square feet would result in a minimal
increase of 408 square feet. The increased NPA would have a neglible impact on
parking conditions, as the number of spaces required is lower than previously calculated
due to methodological changes in the NBMC. The proposed NPA is located within the
existing building footprint and would not result in an increase in overall gross floor area,
thereby appearing the same from adjacent uses and maintaining compatability.
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4.The existing floor plan for 114 McFadden is not changing as a result of the Project. 110
McFadden would be remodeled to create an open-air environment for dining to
complement the existing 114 McFadden restaurant. The prior use permit allowed live
entertainment and dancing, whereas these activities would be prohibited by the
proposed use permit conditions of approval.
5.The Project includes conditions of approval to ensure that potential conflicts are
minimized to the greatest extent possible. Although the eating and drinking
establishment is located approximately 50 feet from residential units across Court
Avenue to the southwest, the building is oriented toward McFadden Square and the
municipal parking lots. The 110 McFadden building will be remodeled to include a
retractable roof and open-air environment, where the existing building does not have
any openings along Court Avenue. To reduce potential noise in the vicinity, all patios,
windows, and the open roof shall be completely closed by 9 p.m., daily. Due to weather
considerations, it is likely that the windows and doors will be closed in the colder seasons
and in the evenings, reducing the likelihood of issues related to sound transmission.
ABC conditions currently require that all side/rear windows and doors to be kept closed
at all times except for the egress/ingress of employees. ABC has not reviewed the latest
design yet that includes a retractable roof and side windows along Court Avenue.
Therefore, a condition of approval is included requiring consistency with ABC conditions
of approval if they are more restrictive than the condition of approval in this resolution.
The Applicant is also required to control trash and litter around the Property.
6.The operational conditions of approval recommended by the Newport Beach Police
Department relative to the sale of alcoholic beverages, including an operator license,
will help ensure compatibility with the surrounding uses and minimize alcohol related
impacts. The Project has been conditioned to ensure the welfare of the surrounding
community. The existing use permit was approved in the 1980s, and the conditions of
approval do not align with the associated ABC License. Modernizing and updating the
existing use permit conditions of approval allows for easier implementation by employees
of the business and enforcement by the Newport Beach Police Department, Code
Enforcement, and ABC. The Project is conditioned to prohibit the restaurant from operating
as a bar, tavern, or nightclub, thereby reducing potential impacts to the neighborhood.
7.As part of the remodel, the Applicant is required to obtain Health Department approval prior
to opening for business and will be required to comply with the California Building Code to
ensure the safety and welfare of customers and employees within the establishment. The
Project includes the construction of a passageway between 114 and 110 McFadden, and
other upgrades which prompts the need for fire sprinklers and additional egress doors,
thereby improving safety conditions for the subject building and surrounding area.
8.The Property is located in a relatively dense area with multiple uses within a short
distance of each other. The McFadden Square area is conducive to a significant amount
of walk-in patrons. The area experiences parking shortages in the daytime during the
summer months, but parking is typically available during the rest of the year. Two (2)
municipal parking lots and on-site parking is available in the area to accommodate the
proposed use.
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9.The Public Works Department and Building Division have reviewed the proposed design
and configuration of parking spaces and determined the design is acceptable upon
implementation of the related conditions of approval. Any future changes to the parking
lot configuration would require review and approval by the Planning and Building
Divisions, as well as the Public Works Department.
Finding:
E.The site is physically suitable in terms of design, location, shape, size, ope rating
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 Property is developed with an existing commercial building and both tenant spaces
are designed for an eating and drinking establishment. The proposed design, size,
location, and operating characteristics of the use are compatible with the surrounding
neighborhood. The existing tenant space on the Property has historically been utilized
by an eating and drinking establishment since the 1970s. Prior to occupation of the
space by the current tenant, Baja Sharkeez, the 114 McFadden space primarily
operated as a bar with live entertainment and dancing. The 110 McFadden space has
operated most recently as a restaurant and market prior to that.
2.Adequate public and emergency vehicle access, public services, and utilities are
provided to the Property. Any additional improvements that are necessary to serve the
use, such as reconstruction of the existing driveway, have been included as conditions
of approval.
3.In conjunction with the remodel of the former Sol Grill that will connect 110 and 114
McFadden, the Applicant is required to install a fire sprinkler system throughout the
combined restaurant spaces. This improvement will enhance the safety of the existing
buildings and benefit the surrounding structures and area.
4.A building permit is required prior to any construction. The Project will comply with all
Building, Public Works, and Fire Codes. All ordinances of the City and all conditions of
approval will be complied with.
Finding:
F.Operation of the use at the location proposed would not be detrimental to the
harmonious and orderly growth of the City, or endanger, jeopardize, or otherwise
constitute a hazard to the public convenience, health, interest, safety, or general welfare
of persons residing or working in the neighborhood of the proposed use.
Facts in Support of Finding:
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1.The Project has been reviewed and includes conditions of approval to ensure that potential
conflicts with the surrounding land uses are minimized to the greatest extent possible. The
operator is required to take reasonable steps to discourage and correct objectionable
conditions that constitute a nuisance in parking areas, sidewalks, and areas surrounding
the subject property and adjacent properties during business hours, if directly related to
the patrons of the establishment.
2.The establishment will continue to provide dining with the service of alcoholic beverages
as a public convenience to the surrounding neighborhood and visitors to the area. This
will continue to help revitalize the Property and provide an economic opportunity for the
property owner to update the building and surrounding area, which best serve the quality
of life for the surrounding visitor- and local-serving community.
3.The existing 110 McFadden tenant space is currently vacant and would be remodeled
as part of the Project. The Project would include updates to meet current building code
and fire code standards including the provision of sprinklers and compliant egress doors
to protect patrons and the surrounding area.
Off-Street Parking Reduction
Both 110 McFadden and 114 McFadden have been granted historical waivers of parking
spaces. In accordance with NBMC Section 20.40.110 (Off-Site Parking) and 21.40.110
(Adjustments to Off-Street Parking Requirements), 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:
A.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); and
1.Historically, parking rates for 110 McFadden were based on the gross floor area of the
restaurant because it was primarily a take-out use. The existing use permit (UP3034A)
requires a parking rate of one (1) space for every 50 square feet of gross floor area plus
one (1) space for each employee. The resulting requirement was 26 parking spaces.
The restaurant provided four (4) parking spaces via in-lieu parking fees, the remaining
22 parking spaces were waived by the Planning Commission.
2.The Property also includes an on-site parking lot containing 10 parking spaces, which
has mainly served employees of the business. However, the 110 and 114 McFadden
tenants both utilize this lot, and the spaces appear to have “double-counted” under the
existing use permits (except 11 p.m. to 2 a.m. when 110 McFadden was closed). In an
effort to accurately analyze parking for the future scenario, the 10 on -site parking spaces
are only counted for the purpose of serving 114 McFadden.
3.Under proposed conditions, the remodeled 110 McFadden space will contain a net
public area of 445 square feet. Using a parking rate of one space per 50 square feet of
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NPA per today’s standards, the resulting parking demand is nine (9) parking spaces.
With the continued payment of four (4) in-lieu parking fees, the resulting waiver for the
use would be five (5) spaces. Therefore, the proposed use would require a continued
waiver of five (5) spaces versus a waiver of 22 spaces previously approved. The result
is a net reduction in of 17 required parking spaces for this portion of the project. Thus,
no additional parking is required as part of the remodel and merger of the 110 McFadden
space with the 114 McFadden space.
4.The existing use permit for the 114 McFadden space (UP1783D) includes separate
parking requirements for “daytime” (11 a.m. to 9 p.m.) and “nighttime” (9 p.m. to close)
operations. The use permit restricts daytime operations, when demand in the area is
highest in summer. The daytime parking rate identified in the use permit is one (1) space
per 40 square feet of net public area. The NPA during the daytime was restricted to 960
square feet (sf) resulting in a demand of 24 parking space s. At the time, this daytime
restriction was simpler and more realistic to enforce, because the business at that time
“Jose Murphy’s” was more of a nightclub/bar that mainly operated at night. The design
included a platform for live entertainment and dancing that was only used utilized after
9 p.m., so the space and timing restriction were appropriate for that use. Applicant is a
full-service restaurant with alcohol (Type 47 ABC License) and there is no clear physical
division to restrict the space during the daytime. This creates regulatory challenges for
City staff as well as employees of the business.
5.The nighttime parking requirement for 114 McFadden was higher per UP1783D
(approved in 1985) as the NPA increased from 960 sf during the day to approximately
1,421 sf after 9:00 pm. The parking requirement was also higher, at a rate of one (1)
space per 35 sf of NPA for the bar/lounge area and one (1) space per for 40 sf for the
dining area. According to the use permit this resulted in a requirement of 37 spaces. The
Property provided 10 parking spaces on-site in the rear parking lot, 18 spaces via in-lieu
parking fees for the public lot, and five (5) spaces via an informal offsite agreement at
Playa Realty (102 McFadden). The Property also had a non-conforming parking credit
of four (4) spaces, which was grandfathered from original construction of the building in
the 1960’s (prior to the requirement for on-site parking). Therefore, through the methods
identified above, the Project met the requirement for 37 parking spaces.
6.The conditions of approval prohibit dancing and live entertainment which would reduce
the parking demand for the Property from the existing use permit, particularly at night.
A uniform parking rate of one (1) space per 50 square feet (sf) of NPA is appropriate for
the business during the daytime and nighttime. The proposed NPA for the 114
McFadden space is 1,368 sf resulting in a parking requirement of 28 parking spaces.
Therefore, the parking requirement increases by four (4) spaces during the daytime and
is reduced by nine (9) spaces at night. The 28 spaces will be provided via the 10 on-site
spaces and 18 in-lieu parking fees. The Project would also continue to receive the four
(4)space nonconforming parking credit which results in the provision of 32 parking
spaces for the 114 McFadden building where only 28 spaces are required, resulting in
a surplus of four (4) spaces.
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7.The 110 McFadden and 114 McFadden spaces will be combined as part of the Project
and the parking will now be regulated in one consolidated use permit. The result is a
combined requirement of 37 parking spaces and the provision of 36 parking spaces.
The 36 parking spaces shall be provided via 10 onsite spaces, 22 in-lieu fees, and a
four (4) space nonconforming credit. The remaining one (1) parking space would be
waived as a continuation of historical parking reductions.
8.It is most likely that the employees and frequent patrons of the business will utilize the
parking spaces to the rear of the Property since they are familiar with the site and how
to access the parking lot. This will reduce the number of employees utilizing the public
lots.
9.The continuation of historical parking reductions remains appropriate for the restaurant,
even with the use of the full dining area during the daytime because the overall parking
demand for both restaurants has been reduced. The original use permits required a
waiver of 22 spaces, where the current use permit requires the wavier of one space. In
addition, in keeping with historical conditions, walk -up and bicycle traffic is common in
this area of the peninsula. Visitors to this area are typically going to the beach or bay
and have multiple destinations on the peninsula, such as recreation, shopping, and
dining. The 137-parking-space McFadden Square municipal parking lot is located
adjacent to the project site. Also located within walking distance is the Newport Pier
municipal parking lot which contains approximately 260 parking spaces. The parking
lots have proven to be sufficient to support the existing restaurant and nearby
businesses.
10.Furthermore, by 9:00 p.m., many of the surrounding businesses close, and at 10:00 p.m.
the beach is closed to the public thereby creating a surplus of public parking spaces.
The closure of these attractions coincides with the busiest time of the week for Baja
Sharkeez, which is weekend nights. Additionally, ride sharing is common for businesses
that serve alcohol.
Coastal Development Permit
In accordance with Section 21.52.015 (Coastal Development Permits, Findings and Decision)
of the Newport Beach Municipal Code, the following findings and facts in support of such
findings are set forth:
Finding:
A.Conforms to all applicable sections of the certified Local Coastal Program.
Facts in Support of Finding:
1.The Project requires a coastal development permit due to the potential intensification of
use at the site and the continuation of historical parking waivers. The Project complies
with applicable development standards including, but not limited to, floor area limitation,
setbacks, and height.
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2.The structure complies with the required setbacks, which are zero (0) feet along all
property lines.
3.The maximum floor area ratio is 0.5 (3,961 square feet). The remodeled building has a
gross floor area of approximately 3,629 square feet.
4.The proposed retractable roof element is approximately 17 feet 6 inches maximum and
the existing roof for 114 McFadden is approximately 19 feet from the finished floor
elevation of 9.01 feet North American Vertical Datum of 1988 (NAVD88), which complies
with the maximum height limitation of 26 feet for a flat roof.
5.The Project requires a waiver of (1) one parking space, where historical use permits
authorized a waiver of 22 parking spaces. Therefore, any potential impacts related to
the increase in net public area during the daytime would be negligible. Similarly, the
additional hours of operation requested in the morning (from 9 a.m.-11 a.m.) are not
peak hours for public access.
6.The neighborhood is predominantly developed with commercial and mixed-use
structures with scattered multi-family zoning to the southwest. The proposed design,
bulk, and scale for the remodel is consistent with the existing neighborhood pattern of
development.
7.The Project site is separated from the bay (the nearest body of water) by Court Avenue,
McFadden Square, commercial buildings, and an approximately 200 -foot wide beach.
The finished floor elevation of the first floor of the structure is 9.01 feet (NAVD88), which
complies with the minimum 9-foot (NAVD88) elevation standard for new structures. The
identified distances from the coastal hazard areas will help to ensure the Project is
reasonably safe for the economic life of the structure.
8.The Property is located in an area known for the potential of seismic activity and
liquefaction. All projects are required to comply with the California Building Code (“CBC”)
and Building Division standards and policies. Geotechnical investigations specifically
addressing liquefaction are required to be reviewed and approved prior to the issuance of
building permits. Permit issuance is also contingent on the inclusion of design mitigation
identified in the investigations. Construction plans are reviewed for compliance with
approved investigations and CBC prior to building permit issuance.
9.The Property is located within 515 feet of coastal waters. A Construction Erosion Control
Plan was provided to implement temporary Best Management Practices (BMPs) during
construction to minimize erosion and sedimentation and to minimize pollution of runoff and
coastal waters derived by construction chemicals and materials. The Project design also
addresses water quality through the inclusion of a post-construction drainage system that
includes drainage and percolation features designed to retain dry weather and minor rain
event runoff on-site. Any water not retained on-site is directed to the City’s storm drain
system.
10.The Project is not located adjacent to a coastal view road or coastal viewpoint as identified
in the Coastal Land Use Plan. The nearest coastal viewpoint is on the end of the Newport
Pier and not visible from the site due to distance and an intervening building that obstructs
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views. The Project is located adjacent to McFadden Square, which is accessible to the
public and provides opportunities to view and access the beach as well as other amenities.
As currently developed, the existing restaurant building and other businesses are located
within the view shed of the beach and shoreline. However, the proposed commercial
remodel complies with all applicable Local Coastal Program (“LCP”) development
standards and maintains a building envelope consistent with the existing neighborhood
pattern of development. Because the existing building envelope will be maintained, any
public views of the beach or ocean from the subject site would remain the same.
Additionally, the project does not contain any unique features that could degrade the visual
quality of the coastal zone.
11.The proposed remodel at 110 McFadden would include the removal of the existing solid
wall along Court Avenue, which would be replaced with a patio area, glass barriers, and
windows. The Project would modernize the existing, vacant building and revitalize the local
neighborhood. The building height would remain approximately the same as the existing
flat roof and any proposed rooftop equipment would be screened from view of pedestrians
and motorists in the vicinity. Therefore, the Project does not have the potential to degrade
the visual quality of the Coastal Zone or result in significant adverse impacts to existing
public views.
Finding:
B.Conforms with the public access and public recreation policies of Chapter 3 of the
Coastal Act if the project is located between the nearest public road and the sea or
shoreline of any body of water located within the coastal zone.
Fact in Support of Finding:
1.The Project is located between the nearest public road and the sea or shoreline.
Implementation Plan Section 21.30A.040 requires that the provision of public access bear
a reasonable relationship between the requirement and the project’s impact and be
proportional to the impact. In this case, the Project remodels an existing restaurant space
and modifies the existing operations. No additional parking spaces are required to serve
the business as proposed. Therefore, the Project does not involve a change in land use,
density or intensity that will result in increased demand on public access and recreation
opportunities. Furthermore, the Project is designed and sited (appropriate height,
setbacks, etc.) so as not to block or impede existing public access opportunities. The
updated design would modernize the appearance of the building to help revitalize the area.
Increased hours of operation in the morning and full use of the restaurant during the
daytime would serve as an amenity to residents and visitors in the area.
2.Vertical access to the beach is available adjacent to the Project within the McFadden Place
plaza and Newport Pier. Lateral access is available on the beach to the west of the site.
The public beach is also the start of a six (6) foot wide public sidewalk providing lateral
access and views of the ocean. The Project does not include any features that would
obstruct access along these routes.
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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. UP2017-034, and Coastal Development Permit No. CD2019-054 subject to the
conditions set forth in Exhibit A, which is attached hereto and incorporated by reference.
3.This action shall become final and effective 14 days following the date this Resolution was
adopted unless within such time an appeal or call for review is filed with the an appeal is
filed with the City Clerk in accordance with the provisions of Title 20 Planning and Zoning
and Title 21 Local Coastal Implementation Plan, of the Newport Beach Municipal Code.
Final action taken by the City on the Coastal Development Permit may be appealed to the
Coastal Commission in compliance with Section 21.64.035 of the City’s certified LCP and
Title 14 California Code of Regulations, Sections 13111 through 13120, and Section 30603
of the Coastal Act.
4.This resolution supersedes Planning Commission Use Permit No. 3034 (Amended) and
Use Permit No. 1783 (Amended) which upon vesting of the rights authorized by these
applications shall become null and void.
PASSED, APPROVED, AND ADOPTED THIS 18th DAY OF JUNE, 2020.
AYES:
NOES:
ABSTAIN:
ABSENT:
BY:_________________________
Peter Koetting, Chairman
BY:_________________________
Lee Lowrey, Secretary
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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.Sales, service, and consumption of alcoholic beverages between the hours of 9 am and
11 am shall only be allowed on weekends (Friday through Sunday), and shall occur only
in conjunction with the purchase of food from the regular menu.
3.Sales, service, and consumption of alcoholic beverages in the original space (11 4
McFadden Place) shall be permitted only between the hours of 9 a.m. and 1:30 a.m .
4.Sales, service, and consumption of alcoholic beverages in the newly expanded
restaurant space (110 McFadden Place) shall be permitted to 11 p.m. only.
5.Sales, service and consumption of food and alcoholic beverages shall be permitted in
the patio area only between the hours of 9 a.m. and 9 p.m. each day of the week.
6.Free refills and/or “all you can drink” deals on alcohol shall be prohibited.
7.The Planning Commission shall review this Conditional Use Permit within one year of
the date of approval, with a focus on alcohol service between the hours of 9 am and
11 am.
8.The rear and side doors and windows shall be kept closed at all times during the
operation of the premises, except to allow entry, during emergencies and/or to permit
deliveries. Said doors not to consist solely of a screen door or ventilated screen door.
Prior to 9 p.m., this condition shall not apply to side windows and the retractable roof if
approved by ABC.
9.The Project is subject to all applicable City ordinances, policies, and standards, unless
specifically waived or modified by the conditions of approval.
10.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.
11.Prior to final building permit inspection, any existing outdoor storage within the onsite
parking lot shall be removed to the satisfaction of the Planning Division.
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12.All proposed signs shall be in conformance with provisions of Chapter 20.42 (Signs) of
the Newport Beach Municipal Code (“NBMC”).
13.Use Permit No. UP2017-034 and Coastal Development Permit No. CD2019-054 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.
14.This Use Permit and Coastal Development 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.
15.Any change in operational characteristics, expansion in area, or other modification to
the approved plans, shall require an amendment to this Use Permit and/or Coastal
Development Permit or the processing of a new Use Permit and/or Coastal
Development.
16.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.
17.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 project
file. 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 Use Permit and Coastal Development Permit and shall highlight the
approved elements such that they are readily discernible from other elements of the
plans.
18.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 Property is excessively illuminated.
19.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.
20.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:
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Planning Commission Resolution No. PC2020-021
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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
21.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.
22.Construction activities shall comply with Section 10.28.040 of the NBMC, which restricts
hours of noise-generating construction activities that produce noise to between the
hours of 7 a.m. and 6:30 p.m., Monday through Friday . Noise-generating construction
activities are not allowed on Saturdays, Sundays or Holidays.
23.All trash shall be stored within the building or within dumpsters stored in the trash
enclosure (three walls and a self-latching gate) or otherwise screened from view of
neighboring properties, except when placed for pick-up by refuse collection agencies.
The trash enclosure shall have a decorative solid roof for aesthetic and screening
purposes.
24.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.
25.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.
26.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).
27.Deliveries and refuse collection for the facility shall be prohibited between the hours of
10 p.m. and 7 a.m. on weekdays and Saturdays and between the hours of 10 p.m. and
9 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 .
28.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.
29.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
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attract large crowds, include any form of on-site media broadcast, or any other activities
as specified in the Newport Beach Municipal Code to require such permits.
30.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 Baja Sharkeez Remodel Project including, but not limited to, UP2017-034,
CDP2019-054, and OL 2017-006 (PA2017-255). 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.
Life Safety Services (Fire) Division
31.As per California Building Code (CBC) Section 407.1 2016 California Existing Building
Code, no change shall be made in the use or occupancy of any building unless such
building is made to comply with the requirements of the CBC for the use or occupancy.
Changes in use or occupancy in a building or portion there of shall be such that the
existing building is no less compliant with the provisions of this code than the existing
building or structure was prior to the change. Subject to the approval of the building
official, the use or occupancy of existing buildings shall be permitted to be changed and
the building is allowed to be occupied for purposes in oth er groups without conforming
to all of the requirements of this code for those groups, provided the new or proposed
use is less hazardous, based on life and fire risk, than the existing use. The proposed
occupancy increase places this structure in a higher life risk, thus the requirements of
CBC will need to be met in order for an occupancy increase.
32.An automatic sprinkler system shall be provided for fire are as containing Group A-2
occupancies and intervening floors of the building where the fire area has an occupant
load of 100 or more per California Fire Code (CFC) Section 903.2.1.2. Due to the
increase of floor area, the occupancy will need to meet current code requirements and
be required to provide fire sprinklers in the existing tenant space (114 McFadden) and
the proposed space (110 McFadden).
33.Where carbon dioxide storage tanks, cylinders, piping and equipment are located
indoors, rooms or areas containing carbon dioxide storage tanks, cylinders, piping and
fitting and other areas where a leak of carbon dioxide can collect shall be provided with
either ventilation in accordance with CFC Section 5307.5 or an emergency alarm system
in accordance with CFC Section 5307.5.2.
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Building Division
34.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.
35.Egress doors shall swing in the direction of travel due to the proposed number of
occupants.
36.Total building occupancy load shall be verified prior to building permit issuance upon the
submission of complete, fully dimensioned plans to the Building Division.
37.Fire sprinklers are required.
Public Works Department
38.The door swing shall not project into the public right of way or the required dimensions
of the parking spaces. This applies to all doors.
39.The trash enclosure gate swing shall not project into the drive aisle or parking spaces.
40.The driveway approach along the Court Avenue frontage shall be reconstructed to
accommodate a minimum four-foot accessible (ADA) path across the driveway. A
pedestrian easement shall be required if portions of the ADA path are on private
property.
41.No private encroachments are permitted within the public right of way. Any existing
encroachments shall be removed prior to permit issuance.
Police Department
42.The Property shall be maintained as a bona fide restaurant and shall provide a menu
containing an assortment of foods normally offered in such restaurants. All items on the
menu shall be available up until ½ hour before closing.
43.During normal business hours, at least 50 percent of the premises seating shall be
prepared for food service and possess condiment dispensers with which to serve meals
to the public.
44.The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of
food during the same period. The license shall at all times maintain records which reflect
separately the gross sale of food and gross sales of alcoholic beverages of the licensed
premises. Said records shall be kept no less frequently than on a quarterly basis and
shall be made available to the Newport Beach Police Department on demand.
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45.No “Happy Hour” type of reduced price alcoholic beverage promotion shall be allowed
after 7 p.m. each day of the week.
46.There shall be no promotional drink specials or reduced drink specials after 7 p.m. each
day of the week.
47.The sale of alcoholic beverages for consumption off the premises is strictly prohibited.
48.No alcoholic beverages shall be consumed on any property adjacent to the licensed
premises under the control of the licensee(s).
49.Entertainment shall not be audible beyond the area under the control of the licensee(s).
50.The use of any amplifying system or device is prohibited on the patio and the use of any
said system and/or device within the interior of the licensed premises shall not be audible
on the exterior of the licensed building.
51.There shall be no live entertainment of any type, including, but not limited to live music,
disc jockey or patron dancing.
52.Petitioner shall not require an admission charge or cover charge, nor shall there be a
requirement to purchase a minimum number of drinks.
53.Petitioner shall not share any profits or pay any percentage or commission to a promoter
or any other person, based on monies collected as a door charge, cover charge, or any
other form of admission charge, including minimum drink orders, or sale of drinks.
54.No beer and/or distilled spirits shall be sold in glass bottles or glass containers larger
than 12 ounces.
55.There shall be no exterior advertising or sign of any kind or type, including advertising
directed to the exterior from within, promoting or indicating the availability of alcoholic
beverages or signs which are clearly visible to the exterior shall constitute a violation of
this condition.
56.Licensees not exercising the privileges of their [ABC] license until after 9 p.m. are
deemed not exercising the privileges of their [ABC] license in good faith and said method
of operation shall be deemed contrary to public welfare and morals and an attempt on
the part of the licensee to circumvent the provisions of Section 23038 of the Business
and Professions Code. For example, a location licensed to operate as a restaurant, then
does not serve food.
57.No portion of the Property shall be deemed to be “private” for the purpose of dispersing
alcoholic beverages to selected patrons. In no case, shall the licensee recognize any
form of membership card, keys or passes which would entitle the holder entry or
preferential admittance, service or exclusive use of any portion of the mentioned
premises.
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58.The petitioner(s) shall be responsible for maintaining free of litter the area adjacent to
the premises over which they have control.
59.Any graffiti painted or marked upon the premises or on any adjacent area under the
control of the licensee(s) shall be removed or painted over within 48 hours of being
applied.
60.No games or contests requiring or involving the consumption of alcoholic beverages
shall be allowed.
61.There shall be no dancing allowed on the Property.
62.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 may be cause for revocation of the use permit.
63.All owners, managers and employees must abide by all laws and conditions of the
Alcoholic Beverage Control License.
64.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 6 0 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.
65.Strict adherence to maximum occupancy limits is required.
66.The Applicant shall maintain a security recording system with a 30 -day retention and
make those recording available to police upon request.
67.Management shall maintain an operational log of daily activities related to the sale and
service of alcoholic beverages, as well as any additional security actions. Management
shall make this log available to the Newport Beach Police Department upon request.
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INTENTIONALLY BLANK PAGE42
Attachment No. PC 2
Police Department Memorandum
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INTENTIONALLY BLANK PAGE44
45
46
47
48
49
50
51
52
53
54
Attachment No. PC 3
Project Plans
55
INTENTIONALLY BLANK PAGE56
PA2017-255Project Plans57
2% SLOPEPA2017-255Project Plans58
2% SLOPE2% SLOPEPA2017-255Project Plans59
PA2017-255Project Plans60
VRO JULOOPA2017-255Project Plans61
NEW ELEVATIONPA2017-255Project Plans62
PA2017-255Project Plans63
NEW SECTIONCENTERLINE OF
MC FADDEN PLACE
CENTERLINE OFCOURT ST PA2017-255Project Plans64
2% SLOPEPA2017-255Project Plans65
EROSION CONTROL BMPsTEMPORARY SEDIMENT CONTROLWIND EROSION CONTROLWASTE MANAGEMENT AND MATERIALS POLLUTION CONTROLTRACKING CONTROLNON-STORMWATER MANAGEMENTYEAR-ROUND BMP REQUIREMENTSLEGENDNOTE139 Avenida NavarroSan Clemente, CA 92672949.492.8586www.toalengineering.comCIVIL ENGINEERINGLAND SURVEYINGSTORMWATER QUALITYPA2017-255Project Plans66
From:Suzanne Scofield
To:Planning Commissioners
Subject:Baja Sharkeez remodel
Date:Wednesday, June 17, 2020 3:01:41 PM
[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the
content is safe.
Why are Sharkeez hours of operation not the same as other bar/restaurants on the Penninsula
that back to residential properties, such as Malarkys & Helmsman Ale House? 11pm
weekdays, 1 or 2am weekends?
And why are they allowed to use their back door until close (leaving it open sometimes)
moving beer kegs, etc., employees talking in the parking lot?
And now they have outside seating in their parking lot when, several years ago, Malarkys was
denied an outside patio in their parking lot that abuts the back of the Landing shopping
center...but around the corner from residential?
I have owned 2004-2006 Court Ave since 1996. It is a 4 unit residential apt bldg.
My parking lot adjoins Sharkeez parking lot, divided only by privacy fencing.
2 units are on Sharkeez side &, over the years, each tenant has complained about the noise in
the parking lot. All 4 tenants have complained of drunks urinating on their cars or throwing up
in the parking lot.
And Sharkeez promises to me, over the years, to not let this happenen, have not been enforced.
It is way passed time for their hours to be 11pm weekdays & 1am on weekends. And, they
should have strick rules about using the back door, just as Helmsman Ale House has.
Please make Sharkeez conform to these rules.
I do my part by renting only to quiet, responsible tenants, who are an asset to the
neighborhood.
Please do not continue to allow Sharkeez to be exempt from rules that should have applied to
them originally.
Thank you for addressing this issue.
Sue Scofield
400 Clubhouse Ave, NB
949-394-9922 cell
suebscofield@gmail.com
Planning Commission - June 18, 2020
Item No. 2a Additional Materials Received
Baja Sharkeez Remodel (PA2017-255)
110 and 114 McFadden Place
Planning
Commission
Public Hearing
June 18, 2020
Baja Sharkeez
Project
Planning Commission - June 18, 2020
Item No. 2b Additional Materials Presented at Meeting
Baja Sharkeez Remodel (PA2017-255)
Introduction
Application Includes:
Conditional Use Permit
Coastal Development Permit
Parking Waiver
Operator’s License (Chief of
Police)
Community Development Department -Planning Division 2
Planning Commission - June 18, 2020
Item No. 2b Additional Materials Presented at Meeting
Baja Sharkeez Remodel (PA2017-255)
Location
Community Development Department -Planning Division 3
Planning Commission - June 18, 2020
Item No. 2b Additional Materials Presented at Meeting
Baja Sharkeez Remodel (PA2017-255)
Community Development Department -Planning Division 4
Existing Conditions
Planning Commission - June 18, 2020
Item No. 2b Additional Materials Presented at Meeting
Baja Sharkeez Remodel (PA2017-255)
Proposed
Physical
Changes
Remodel and
Expansion
Community Development Department -Planning Division 5
Planning Commission - June 18, 2020
Item No. 2b Additional Materials Presented at Meeting
Baja Sharkeez Remodel (PA2017-255)
6
Proposed Parking
Planning Commission - June 18, 2020
Item No. 2b Additional Materials Presented at Meeting
Baja Sharkeez Remodel (PA2017-255)
Existing
Use
Permits
Sharkeez Suite
1980s -bar/nightclub style operator
Sharkeez took over in 1990s
11:00 am to 2:00 am, daily
Live entertainment/dancing
Limited public area during daytime
Type 47 ABC License
Sol Grill Suite
1980s –mostly take-out
11:00 am to 11:00 pm, daily
Type 41 ABC License
Community Development Department -Planning Division 7
Planning Commission - June 18, 2020
Item No. 2b Additional Materials Presented at Meeting
Baja Sharkeez Remodel (PA2017-255)
Proposed
Operational
Changes
One consolidated UP
Modernize conditions
Match ABC conditions
Type 47 ABC license
Allow breakfast service @ 9:00 am vs.
11:00 am
Close at 1:30 am vs. 2:00 am (original
Sharkeez)
Close at 11:00 pm (new Sharkeez)
Full use of interior during daytime
Waive one parking space
Continue to pay in-lieu fees
Community Development Department -Planning Division 8
Planning Commission - June 18, 2020
Item No. 2b Additional Materials Presented at Meeting
Baja Sharkeez Remodel (PA2017-255)
Notable
Conditions
No bottomless mimosas/free refills
on alcohol
One year review
Clean up parking lot
Close all doors/windows/roof by
9:00 pm
No live entertainment/dancing
*Memo to revise 3 conditions
Community Development Department -Planning Division 9
Planning Commission - June 18, 2020
Item No. 2b Additional Materials Presented at Meeting
Baja Sharkeez Remodel (PA2017-255)
Typical
Day
9:00 am open for breakfast
9:00 pm close all openings
10:30 pm last call at new
Sharkeez
11:00 pm close new Sharkeez
~1:00 am last call at original
Sharkeez
1:30 am close original
Sharkeez
Community Development Department -Planning Division 10
Planning Commission - June 18, 2020
Item No. 2b Additional Materials Presented at Meeting
Baja Sharkeez Remodel (PA2017-255)
Summary
Modernize building and use permit
Match UP and ABC conditions
Eliminate one alcohol license
Decrease late night hours (1:30 am
vs 2:00 am)
Enhance safety features of the
building
Improve accessibility
Operator’s License
Community Development Department -Planning Division 11
Planning Commission - June 18, 2020
Item No. 2b Additional Materials Presented at Meeting
Baja Sharkeez Remodel (PA2017-255)
Recommended
Action
Conduct a public hearing
Find project exempt from CEQA
Adopt Resolution PC2020-02 1
approving project
Community Development Department -Planning Division 12
Planning Commission - June 18, 2020
Item No. 2b Additional Materials Presented at Meeting
Baja Sharkeez Remodel (PA2017-255)
For more
information
Contact
Questions?
Liz Westmoreland, Associate Planner
949-644-3234
lwestmoreland@newportbeachca.gov
www.newportbeachca.gov
Community Development Department -Planning Division 13
Planning Commission - June 18, 2020
Item No. 2b Additional Materials Presented at Meeting
Baja Sharkeez Remodel (PA2017-255)
Community Development Department -Planning Division 14
2. Sales,service,and consumption of alcoholic beverages
between the hours of 9 am and 11 am shall only be
allowed on weekends (Friday through Sunday),and
certain holidays (New Year’s Day,Saint Patrick’s Day,
Cinco de Mayo, Memorial Day,4th of July,and Labor
Day)and shall occur only in conjunction with the
purchase of food from the regular menu.
42.The Property shall be maintained as a bona fide
restaurant and shall provide a menu containing an
assortment of foods normally offered in such restaurants.
All items At least 75%of items on the menu shall be
available up until ½hour before closing.
55.Except for table tents and menus,there shall be no
exterior advertising or sign of any kind or type,including
advertising directed to the exterior from within,promoting
or indicating the availability of alcoholic beverages or
signs which are clearly visible to the exterior shall
constitute a violation of this condition.
Planning Commission - June 18, 2020
Item No. 2b Additional Materials Presented at Meeting
Baja Sharkeez Remodel (PA2017-255)
Baja Sharkeez Sol Room Dining & Social Experience
•The new space is an extension of the current space, but with a significantly different feeling.
•The purpose of Sol Room, in addition to increasing food sales and consumption, will be for
guests who want a higher level of service in a more subdued and relaxed atmosphere, akin
to gathering at a friend’s beach house.
•The Sharkeez side atmosphere has self-service, high tables, more people standing up eating,
drinking and socializing.
•The Sol space will be a full service, comfortable restaurant atmosphere with low tables more
conducive to eating in a cool, sophisticated coastal contemporary setting.
•This space will be unique compared to other restaurants in the area due to its charming
open air feel during the daytime and early evening, yet it can be completely closed on all
sides and the roof to mitigate any noise issues later at night.
•We feel this space will be a big hit with locals and tourists alike.
Planning Commission - June 18, 2020
Item No. 2c Additional Materials Presented at Meeting
Baja Sharkeez Remodel (PA2017-255)
Planning Commission - June 18, 2020
Item No. 2c Additional Materials Presented at Meeting
Baja Sharkeez Remodel (PA2017-255)
Planning Commission - June 18, 2020
Item No. 2c Additional Materials Presented at Meeting
Baja Sharkeez Remodel (PA2017-255)
Planning Commission - June 18, 2020
Item No. 2c Additional Materials Presented at Meeting
Baja Sharkeez Remodel (PA2017-255)
Planning Commission - June 18, 2020
Item No. 2c Additional Materials Presented at Meeting
Baja Sharkeez Remodel (PA2017-255)
Planning Commission - June 18, 2020
Item No. 2c Additional Materials Presented at Meeting
Baja Sharkeez Remodel (PA2017-255)
Planning Commission - June 18, 2020
Item No. 2c Additional Materials Presented at Meeting
Baja Sharkeez Remodel (PA2017-255)
Planning Commission - June 18, 2020
Item No. 2c Additional Materials Presented at Meeting
Baja Sharkeez Remodel (PA2017-255)
Community Development Department
CITY OF NEWPORT BEACH
COMMUNITY DEVELOPMENT DEPARTMENT
100 Civic Center Drive
Newport Beach, California 92660
949 644-3200
newportbeachca.gov/communitydevelopment
Memorandum
To: Chair Koetting and Planning Commissioners
From: Liz Westmoreland, Associate Planner
Date: June 18, 2020
Re: Baja Sharkeez Revised Conditions of Approval (PA2017-255)
Dear Chair Koetting and Planning Commissioners,
The applicant has reviewed the draft conditions of approval and requests
modifications to three conditions. Their justification request is attached. Staff is
agreeable to most of their changes and recommends the conditions be modified
as follows:
2.Sales, service, and consumption of alcoholic beverages between the hours of 9
am and 11 am shall only be allowed on weekends (Friday through Sunday), and
certain holidays (New Year’s Day, Saint Patrick’s Day, Cinco de Mayo, Memorial
Day, 4th of July, and Labor Day) and shall occur only in conjunction with the
purchase of food from the regular menu.
42.The Property shall be maintained as a bona fide restaurant and shall provide a
menu containing an assortment of foods normally offered in such restaurants. All
items At least 75% of items on the menu shall be available up until ½ hour before
closing.
55.Except for table tents and menus, there shall be no exterior advertising or sign of
any kind or type, including advertising directed to the exterior from within,
promoting or indicating the availability of alcoholic beverages or signs which are
clearly visible to the exterior shall constitute a violation of this condition.
The applicant requests that Condition No. 2 be modified to remove “and shall only
occur in conjunction with the purchase of food form the regular menu”. Staff does
not agree with this change.
Planning Commission - June 18, 2020
Item No. 2d Additional Materials Received At Meeting - Staff
Baja Sharkeez Remodel (PA2017-255)
From: Greg Newman <gregn@sharkeez.net>
Sent: Wednesday, June 17, 2020 6:36 PM
To: Westmoreland, Liz
Subject: FW: 6/18/20 - Planning Commission Staff Report and Agenda – PA2017-255
Follow Up Flag: Follow up
Flag Status: Completed
[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content
is safe.
Hi Liz, please see below. See you tomorrow!
Greg Newman
President
Baja Sharkeez Restaurant Group - Baja Sharkeez, Sandbar, Panama Joe's, Killarney Bar & Grill,
Tower12, Shark’s Cove, Palmilla Cocina y Tequila & Esperanza
p. 310-374-3964 f. 310-374-9901
36 13th Ct.
Hermosa Beach, CA 90254
www.sharkeez.net www.sandbarsb.com www.panamajoescantina.com www.tower12hb.com www.sh
arkscovemb.com www.palmillarestaurant.com
Hermosa I Huntington I Manhattan I Newport I Santa Barbara I Belmont Shore
From: Leigh Lupinacci <leighl@sharkeez.net>
Sent: Wednesday, June 17, 2020 6:19 PM
To: Greg Newman <gregn@sharkeez.net>; Ron Newman <ron@sharkeez.net>
Subject: RE: 6/18/20 - Planning Commission Staff Report and Agenda – PA2017-255
Dear Liz,
You asked me to send you an email outlining what conditions were unreasonable and which would give
us a hard time complying with. I would appreciate if you included the points I detail below in your
presentation. It seemed like you understood my reasoning when we spoke on the phone.
By the way, you did an amazing job writing this document! Its seems to me it must have taken you
weeks. With that being said, it took me 2 hours to read through, which is why this email is coming so
late in the day. Hopefully, you will receive it first thing Thursday morning. Thank you for all of your help!
The following points are in regards to Exhibit A Condition #2 (page 35).
“Sales, service, and consumption of alcoholic beverages between the hours of 9 am and 11 am shall
only be allowed on weekends (Friday through Sunday), and shall occur only in conjunction with the
purchase of food from the regular menu.”
Point #1 – here are the first are 3 issues we have with this condition:
1. People often come to a restaurant, sit down and order a drink before they decide on what they
would like to eat. Often, guests place orders before they open up the food menus.
2. People may like to order a 2nd round of drinks while enjoying their breakfast. They should not
have to purchase more food in order to order a 2nd round.
Planning Commission - June 18, 2020
Item No. 2d Additional Materials Received At Meeting - Staff
Baja Sharkeez Remodel (PA2017-255)
3. There times when one person in a party may not be ordering breakfast, and he/she may just
want to enjoy a drink while the others in their party eat breakfast
Point #2
There are a few holidays each year that may fall onto a weekday. These days are extremely important to
our business, and we need to be able to service guests and provide breakfast service if these holidays
fall on a weekday. We would like an exception to the “weekend only” condition for the following
holidays: New Years Day (January 1st), St Patrick’s Day (March 17th), Cinco de Mayo (May 5th), Memorial
day (varies), 4th of July and Labor Day (varies).
Thank you for your consideration and assistance!
Leigh Lupinacci
Director Food & Beverage, Partner
Baja Sharkeez Restaurant Group - Baja Sharkeez, Sandbar, Panama Joe's, Killarney Bar & Grill, Tower12, Palmilla
Cocina y Tequila, Esperanza Cocina de la Playa
p. 310-374-3964 f. 310-374-9901
36 13th Ct.
Hermosa Beach, CA 90254
Hermosa I Huntington I Manhattan I Newport I Santa Barbara I Belmont Shore
From: Greg Newman
Sent: Wednesday, June 17, 2020 5:46 PM
To: Leigh Lupinacci <leighl@sharkeez.net>; Jordan Cressman <jordan@sharkeez.net>; Eric Levit
<eric@sharkeez.net>
Subject: FW: 6/18/20 - Planning Commission Staff Report and Agenda – PA2017-255
Greg Newman
President
Baja Sharkeez Restaurant Group - Baja Sharkeez, Sandbar, Panama Joe's, Killarney Bar & Grill,
Tower12, Shark’s Cove, Palmilla Cocina y Tequila & Esperanza
p. 310-374-3964 f. 310-374-9901
36 13th Ct.
Hermosa Beach, CA 90254
www.sharkeez.net www.sandbarsb.com www.panamajoescantina.com www.tower12hb.com www.sh
arkscovemb.com www.palmillarestaurant.com
Hermosa I Huntington I Manhattan I Newport I Santa Barbara I Belmont Shore
From: Westmoreland, Liz <LWestmoreland@newportbeachca.gov>
Sent: Friday, June 12, 2020 8:03 AM
Planning Commission - June 18, 2020
Item No. 2d Additional Materials Received At Meeting - Staff
Baja Sharkeez Remodel (PA2017-255)