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HomeMy WebLinkAbout16 - Zoning Code Amendment to Allow Wine Tasting Room Uses within the Industrial Zoning District (PA2020-042)Q �EwPpRT CITY OF O � z NEWPORT BEACH <,FORN'P City Council Staff Report August 25, 2020 Agenda Item No. 16 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Seimone Jurjis, Community Development Director - 949-644-3232, sjurjis@newportbeachca.gov PREPARED BY: David Blumenthal, AICP, Planning Consultant dblumenthal@newportbeachca.gov PHONE: 949-644-3204 TITLE: Ordinance No. 2020-21: Zoning Code Amendment to Allow Wine Tasting Room Uses within the Industrial Zoning District (PA2020- 042) ABSTRACT: The Industrial Zoning District (IG) currently limits eating and drinking establishments to "Take -Out Service — Limited" only. The proposed Newport Beach Municipal Code (NBMC) amendment would allow wine tasting rooms as an allowed use in the IG, subject to the approval of a conditional use permit. For City Council's consideration is an ordinance amending Title 20 of the NBMC to allow wine tasting room uses in the IG. RECOMMENDATION: a) Conduct a public hearing; b) Find this action proposed herein is not a project subject to the California Environmental Quality Act ("CEQA") in accordance with Section 21065 of the California Public Resources Code and Sections 15060 (c)(2), 15060 (c)(3), and 15378 of the California Code of Regulations Title 14, Division 6, Chapter 3 ("CEQA Guidelines"). The proposed action is also exempt pursuant to CEQA Guidelines Section 15061(b)(3), the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment; and c) Waive full reading, direct the City Clerk to read by title only, introduce Ordinance No. 2020-21, An Ordinance of the City Council of the City of Newport Beach, California, adopting Zoning Code Amendment No. CA2020-005 to Amend Section 20.24.020 (Industrial Zoning Land Uses and Permit Requirements) of Title 20 (Planning and Zoning) of the Newport Beach Municipal Code and other Related Provisions to Allow for Wine Tasting Rooms Within the Industrial Zoning District (IG) (PA2020-042), and pass to second reading on September 8, 2020. 16-1 Ordinance No. 2020-21: Zoning Code Amendment to Allow Wine Tasting Room Uses within the Industrial Zoning District (PA2020-042) August 25, 2020 Page 2 FUNDING REQUIREMENTS: There is no fiscal impact related to this item. INTRODUCTION: Project Setting The Industrial Zoning District (IG) is located in the southwest portion of the City, near 16'" Street and Placentia Avenue (see Figure 1). The IG is intended to provide for areas appropriate for a wide range of moderate to low intensity industrial uses (e.g., light manufacturing and research and development) and limited accessory commercial and office uses. m Index IG Zone IC Orange Coast Winery 1FTH ST W W 16TH 5T PIF r� I �7 .751 FAR 2420 SA I{; (i,?5 FAF I G 0.5 FAR A 4 2420 H Rr.1 31 UU 1420 SA 3A'C>llr / DJ • / TR1931�4! 2 r�.r/rrr� ,/242ioSA 'r a r� '/Duel Figure 1 - IG Zone Boundaries RM 3904f 2420 SA DIJ %rrr EBB�TIC�E.i:If�� f C �I`� FAR SA i n Y1M F R %f Among the various permitted uses allowed in the IG, eating and drinking establishments are limited to "Take -Out Service — Limited" only. 16-2 Ordinance No. 2020-21: Zoning Code Amendment to Allow Wine Tasting Room Uses within the Industrial Zoning District (PA2020-042) August 25, 2020 Page 3 Wine Tastina Rooms A wine tasting room operates under a Department of Alcoholic Beverage Control (ABC) Type 2 (Winegrower) license. The Type 2 license was originally intended to allow the operation of a winegrower who has facilities and equipment to convert fruit into wine (e.g. a winery). When a winery desires to operate a tasting room, ABC will only issue a duplicate Type 2 license to the master license holder. This is not to say that every business that operates under the ABC Type 2 license is a wine tasting room. Retail sales can also be provided under the Type 2 license. However, the wine that is sold for retail can only be produced at the winery that holds the master Type 2 license. DISCUSSION: Project Description The proposed amendment would establish "Wine Tasting Rooms" as a new subset of eating and drinking establishments within Title 20 (Planning and Zoning code); as well as allow them to operate within the IG, subject to approval of a conditional use permit (Attachment B). Specifically, the proposed ordinance would amend the following to the NBMC: Section 20.24.020 (Industrial Zoning District Land Uses and Permit Requirements) would be amended to require a conditional use permit for the operation of a wine tasting room in the IG and would limit the hours of operations to Monday through Friday from 4 p.m. to 11 p.m. and Saturday and Sunday from 12 p.m. to 11 p.m. Section 20.40.040 (Off -Street Parking Spaces Required) would be amended to add a parking requirement for wine tasting rooms. The parking requirement is proposed as one space per each four persons based on allowed occupancy load or as required by the conditional use permit. This parking requirement is consistent with the current code requirements for bars, lounges, and nightclubs. Section 20.48.090 (Eating and Drinking Establishments) would be amended to provide specific requirements for the wine tasting rooms. This includes a 500 -foot separation requirement from schools as measured from the school property line to the building in which the wine tasting room is located, a prohibition on live entertainment, and a prohibition on any food preparation equipment that would require a mechanical ventilation system. Section 20.70.020 (Definitions of Specialized Terms and Phrases) would be amended to include the definition of wine tasting rooms within the definitions of an eating and drinking establishment. 16-3 Ordinance No. 2020-21: Zoning Code Amendment to Allow Wine Tasting Room Uses within the Industrial Zoning District (PA2020-042) August 25, 2020 Page 4 Staff's initial proposal to the Planning Commission also included a 500 -foot separation between properties with wine tasting rooms; however, as discussed below, the Planning Commission removed this requirement as part of their recommendation. The operation of a wine tasting room in the IG is not unprecedented. In 2010, the City Council approved an Interim Study (IS) Overlay to allow the operation of the Newport Beach Wine Company located at 869 West 16th Street, which manufactured wine on-site and provided ancillary tastings (Attachment C). However, the use, now known as the Orange Coast Winery, changed and began to operate as a tasting room that did not manufacture wine but instead sold it as retail. Retail sales of wine with no on-site manufacturing is not an allowed use under the current Planning and Zoning code. If this amendment is approved, Orange Coast Winery would be permitted to apply for a conditional use permit, consistent with the proposed regulations for wine tasting rooms. Planning Commission Review On July 23, 2020, the Planning Commission conducted a duly noticed public hearing to consider the request (Attachments D and E). The Commission received four letters in opposition and one in favor of the amendment. Additionally, two public speakers addressed the Commission (one in favor and one opposed), both of which had previously submitted letters. Opponents to the proposed amendment expressed concern that allowing wine tasting rooms within the IG is not consistent with the General Plan, the additional alcohol sales would create impacts to the surrounding area, and the proposed amendment would benefit too few properties. One individual was not opposed to the amendment per se, but rather opposed to the 500 -foot separation requirement from schools. In addition to the opposition, a representative for Orange Coast Winery spoke in favor of the request. During their deliberations, the Planning Commission articulated concerns that the proposed 500 -foot separation between properties with wine tasting rooms would result in a spot zone since it only would benefit a few property owners. With the operation of Orange Coast Winery and the 500 -foot separation requirement, only one additional property in the IG would be allowed to operate. To avoid this, the Planning Commission revised the proposed code text to remove the 500 -foot separation. As a result of this change, 23 properties could accommodate wine tasting rooms. It is important to note that this change did not alter the requirement for wine tasting rooms to maintain a 500 -foot distance from primary and secondary schools. At the conclusion of the public hearing, the Planning Commission adopted Resolution No. PC2020-29, thereby recommending the City Council approve the project, by a 4-2 vote (Attachment F). 16-4 Ordinance No. 2020-21: Zoning Code Amendment to Allow Wine Tasting Room Uses within the Industrial Zoning District (PA2020-042) August 25, 2020 Page 5 General Plan Consiste According to the General Plan, "[t]he IG designation is intended to provide for a wide range of moderate to low intensity industrial uses, such as light manufacturing and research and development, and limited ancillary commercial and office uses." The Zoning Code Amendment would allow wine tasting rooms with limitations within the IG zone, which are accessory to wine production, sales and distribution and ancillary to the industrial uses in the vicinity. The wine tasting room would benefit those who live and work in the area, as it would provide for a location to try wine products before purchasing. ENVIRONMENTAL REVIEW: The Code Amendment is not a project subject to the California Environmental Quality Act ("CEQA") in accordance with Section 21065 of the California Public Resources Code and Sections 15060 (c)(2), 15060 (c)(3), and 15378 of the California Code of Regulations Title 14, Division 6, Chapter 3 ("CEQA Guidelines"). The proposed action is also exempt pursuant to CEQA Guidelines Section 15061(b)(3), the general rule that CEQA applies only to projects, which have the potential for causing a significant effect on the environment. While this amendment would allow a new category of use in an existing zoning district, it does not authorize new development that would directly result in physical change to the environment. There is no evidence that alcoholic beverage service in the IG zone would result in any different or new effects on the environment than were already assumed with the IG zone. NOTICING: Notice of this amendment was published in the Daily Pilot as an eighth page advertisement, consistent with the provisions of the Municipal Code. The item also appeared on the agenda for this meeting, which was posted at City Hall and on the City website. ATTACHMENTS: Attachment B — Redlined Zoning Code Text Changes Attachment C — Ordinance No. 2010-17 Attachment D — Planning Commission staff report, dated July 23, 2020 Attachment E — Planning Commission draft minute excerpts, dated July 23, 2020 Attachment F — Planning Commission Resolution No. PC2020-29 16-5 ATTACHMENT A ORDINANCE NO. 2020-21 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, ADOPTING ZONING CODE AMENDMENT NO. CA2020-005 TO AMEND SECTION 20.24.020 (INDUSTRIAL ZONING LAND USES AND PERMIT REQUIREMENTS) OF TITLE 20 (PLANNING AND ZONING) OF THE NEWPORT BEACH MUNICIPAL CODE AND OTHER RELATED PROVISIONS TO ALLOW FOR WINE TASTING ROOMS WITHIN THE INDUSTRIAL ZONING DISTRICT (IG) (PA2020-042) WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the City Council with the authority to make and enforce all laws, rules and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the State Constitution, and the power to exercise, or act pursuant to any and all rights, powers, and privileges, or procedures granted or prescribed by any law of the State of California; WHEREAS, the Industrial Zoning District (IG) enumerates various permitted and conditionally permitted uses; however, wine tasting rooms are not currently listed as a permitted use within the Industrial Zoning District (IG); WHEREAS, on April 14, 2020, the City Council of the City of Newport Beach adopted Resolution 2020-38 initiating an amendment to Title 20 (Planning and Zoning) of the Newport Beach Municipal Code ("NBMC") to allow wine tasting rooms in the Industrial Zoning District (IG) ("Zoning Code Amendment No. CA2020-005'); WHEREAS, a telephonic public hearing was held by the Planning Commission on July 23, 2020, in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California, due to the Declaration of a State Emergency and Proclamation of Local Emergency related to COVID-19. A notice of time, place, and purpose of the public hearing was given in accordance with Government Code Section 54950 et seq. ("Ralph M. Brown Act") and Chapter 20.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing; WHEREAS, at the hearing, the Planning Commission adopted Resolution No. PC2020-029 by a majority vote (4 ayes, 2 nayes) recommending to the City Council approve Zoning Code Amendment No. CA2020-005; 16-6 Ordinance No. 2020 - Page 2 of 14 WHEREAS, a telephonic public hearing was held by the City Council on August 25, 2020, in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California, due to the Declaration of a State Emergency and Proclamation of Local Emergency related to COVID-19. A notice of time, place, and purpose of the public hearing was given in accordance with Ralph M. Brown Act and Chapter 20.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at this public hearing; WHEREAS, the Industrial Zoning District (IG) is intended to provide for a wide range of moderate to low intensity industrial uses, such as light manufacturing and research and development, and limited ancillary commercial and office uses; WHEREAS, Zoning Code Amendment No. CA2020-005 would allow wine tasting rooms within the Industrial Zoning District (IG) which are accessory to wine production, sales and distribution; and WHEREAS, wine tasting rooms are a commercial use, ancillary to the industrial uses in the vicinity, that would serve those who live and work in the area by allowing sampling of wine products. NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows: Section 1: Table 2-12 (Allowed Uses and Permit Requirements) of Section 20.24.020(C) (Applicable Regulations) of Chapter 20.24 (Industrial Zoning District (IG)) of the Newport Beach Municipal Code (NBMC) is amended in its entirety to read as follows: 16-7 Industrial Zoning Permit Requirements District Permitted by P Right Conditional Use TABLE 2-12 Permit (Section ALLOWED USES AND PERMIT CUP 20.52.020) REQUIREMENTS Minor Use Permit (Section MUP 20.52.020) Limited Term Permit (Section LTP 20.52.040) — Not allowed Land Use IG 16-7 Ordinance No. 2020 - Page 3 of 14 See Part 7 of this title for land use definitions. See Chapter 20.12 for unlisted uses. Specific Use Regulations Industry, Manufacturing and Processing, Warehousing Uses Food Processing P Handicraft Industry P Industry Small -10,000 sq. ft. or less P Large—Over 10,000 sq. ft. MUP Personal Storage (Mini Storage) MUP Research and Development, General P Research and Development, Restricted MUP Warehousing Small -10,000 sq. ft. or less P Large—Over 10,000 sq. ft MUP Wholesaling P Recreation, Education, and Public Assembly Uses Assembly/Meeting Facilities CUP Retail Trade Uses Alcohol Sales (off -sale) MUP Section 20.48.030 Alcohol Sales (off -sale), Accessory Only P Building Materials and Services P Contractor's Storage Yards MUP Marine Rentals and Sales Boat Rentals and Sales MUP Marine Retail Sales P Retail Sales P Service Uses—Business, Financial, Medical, and Professional ATMs P Offices—Business and Professional P Service Uses ---General Ambulance Services P Animal Sales and Services Animal Boarding/Kennels MUP Section 20.48.050 Ordinance No. 2020 - Page 4 of 14 Animal Grooming P Section 20.48.050 Animal Hospitals/Clinics MUP Section 20.48.050 Animal Retail Sales P Section 20.48.050 Catering Services P Eating and Drinking Establishments Take -Out Service Limited P Section 20.48.090 Wine Tasting Room (1) CUP Section 20.48.090 Funeral Homes and Mortuaries CUP Health/Fitness Facilities Small -2,000 sq. ft. or less P Large—Over 2,000 sq. ft. MUP Laboratories P Maintenance and Repair Services P Marine Services Boat Storage MUP Boat Yards MUP Personal Services Studios P Postal Services P Printing and Duplicating Services P Recycling Facilities Collection Facility—Large CUP Section 20.48.160 Collection Facility—Small MUP Section 20.48.160 Transportation, Communications, and infrastructure Uses Communication Facilities P Heliports and Helistops (2) CUP Parking Facilities P Utilities, Minor P Utilities, Major CUP Wireless Telecommunication Facilities CUP/MUP/LTP Chapter 20.49 16-9 Ordinance No. 2020 - Page 5 of 14 Vehicle Rental, Sale, and Service Uses Vehicle/Equipment Rentals Office Only P Limited P Vehicles for Hire CUP Vehicle/Equipment Rentals and Sales MUP Vehicle/Equipment Repair General CUP Limited MUP Vehicle/Equipment Services Automobile Washing/Detailing MUP Service Stations CUP Section 20.4$.210 Vehicle Storage MUP Other Uses Accessory Structures and Uses P Caretaker Residence P Drive -Through Facilities CUP Section 20.48.080 Outdoor Storage and Display MUP Section 20.48.140 Special Events Chapter 11.03 Temporary Uses LTP Section 20.52.040 * Uses Not Listed. Land uses that are not listed in the table above, or are not shown in a particular zoning district, are not allowed, except as otherwise provided by Section 20.12.020 (Rules of Interpretation). Section 2: A new Footnote (1) is added with renumbering of the subsequent footnote to Table 2-12 (Allowed Uses and Permit Requirements) of Section 20.24.020(C) (Allowed Uses and Permit Requirements) of Chapter 20.24 (Industrial Zoning District (IG)) of the NBMC to read as follows: (1) Wine Tasting Room Hours of Operation. The permitted hours of operation shall be limited to Monday through Friday from 4:00 p.m. to 11:00 p.m., and Saturday and Sunday from 12:00 p.m. to 11:00 p.m. 16-10 Ordinance No. 2020 - Page 6 of 14 (2) Applicants for City approval of a heliport or helistop shall provide evidence that the proposed heliport or helistop complies fully with State of California permit procedures and with any and all conditions of approval imposed by the Federal Aviation Administration (FAA), the Airport Land Use Commission for Orange County (ALUC), and by the Caltrans Division of Aeronautics. Section 3: A new Subsection (F) "Standards -Wine Tasting Rooms" is added to Section 20.48.090 (Eating and Drinking Establishments) of Chapter 20.48 (Standards for Specific Land Uses) of the NBMC with re -lettering of the subsequent subsection to read as follows: F. Standards - Wine Tasting Rooms. In addition to the standards set forth in subsections (A) through (D), wine tasting rooms shall comply with the following standards: 1. The building in which the wine tasting room is located shall be a minimum of 500 feet from the property line of any property that contains a preschool, elementary, middle, or high school. 2. The wine tasting room shall operate under an ABC Type 2 (Winegrower) license only. 3. The wine tasting room shall not operate as a bona fide eating establishment, but may serve incidental foods such as bread, crackers, cheeses or nuts. Any kitchen or food preparation area provided shall have no cooking equipment that requires a mechanical ventilation system to exhaust heat, steam or grease vapor. 4. Limited private events may occur within the wine tasting room, provided the wine tasting room remains open to the public. 5. Live entertainment is prohibited. G. Permit Requirements. 1. New Establishments. Permits and licenses required by Title 5 (Business Licenses and Regulations) shall be obtained for new eating and drinking establishments, in addition to permits required by Part 2 of this title (Zoning Districts, Allowable Land Uses, and Zoning District Standards). 2. Existing Establishments. An existing eating and drinking establishment, including bars, lounges, and nightclubs, shall obtain permits and licenses required by Title 5 (Business Licenses and Regulations) in the following circumstances: a. Substantial Change. When there is a substantial change in operation including any of the following: 16-11 Ordinance No. 2020 - Page 7 of 14 i. An application for, or a change in type of, retail liquor license from the Department of Alcoholic Beverage Control; ii. An increase in the floor area principally devoted to alcohol sales by twenty- five (25) percent or more or by two hundred fifty (250) square feet or more, whichever is less; or iii. A reinstatement of alcohol sales after the ABC has revoked or suspended the existing ABC license for a period of longer than thirty (30) days. b. Objectionable Conditions. When the establishment is operated or maintained under objectionable conditions that constitute a public nuisance, including any of the following: i. A pattern of documented violations of the permit conditions, this Zoning Code, the Municipal Code, the Penal Code, or other State statutes; or ii. A pattern of substantiated complaints of activity constituting evidence of a nuisance. 3. Review Criteria. a. Late -Hour Operations. When reviewing an application to allow late -hour operations, the review authority shall consider the following potential impacts upon adjacent or nearby uses: i. Noise from music, dancing, and voices associated with allowed indoor or outdoor uses and activities; ii. High levels of lighting and illumination; iii. Increased pedestrian and vehicular traffic activity during late night and early morning hours; iv. Increased trash and recycling collection activities; v. Occupancy loads of the use; and vi. Any other factors that may affect adjacent or nearby uses. b. Outdoor Dining. When reviewing an application to allow outdoor dining, the review authority shall consider the relation of outdoor dining areas to sensitive noise receptors (e.g., hospitals, schools, and residential uses). Mitigation measures shall be applied to eliminate potential impacts related to glare, light, loitering, and noise. 16-12 Ordinance No. 2020 - Page 8 of 14 c. On -Sale Alcohol Sales. When reviewing an application to allow an eating or drinking establishment to sell, serve, or give away alcohol, the review authority shall: i. Evaluate the potential impacts upon adjacent uses outlined in subsection (F)(3)(a) of this section (Late -Hour Operations). For the purposes of this subsection, "adjacent uses" shall mean those uses within one hundred (100) feet of the proposed use, as measured between the nearest lot lines; ii. Consider the proximity to other establishments selling alcoholic beverages for either off-site or on-site consumption; and iii. Make the findings in Section 20.48.030(C)(3) (alcohol sales—off-sale). 4. Post -Decision Procedures. a. With On -Sale Alcohol Sales. For establishments with permits for on -sale alcohol sales, the post -decision procedures in Section 20.48.030(C)(4) shall apply. b. Without On -Sale Alcohol Sales. For establishments that do not sell, serve, or give away alcohol, the procedures and requirements in Chapter 20.54 (Permit Implementation, Time Limits, and Extensions), and those related to appeals in Part 6 of this title (Zoning Code Administration) shall apply. Section 4: Table 3-10 (Off -Street Parking Requirements) of Section 20.40.040 (Off -Street Parking Spaces Required) of Chapter 20.40 (Off -Street Parking) of the NBMC is amended in its entirety to read as follows: TABLE 3-10 OFF-STREET PARKING REQUIREMENTS Land Use Parking Spaces Required Industry, Manufacturing and Processing, Warehousing Uses Food Processing 1 per 2,000 sq. ft. Handicraft Industry 1 per 500 sq. ft. Industry Small -5,000 sq. ft. or less 1 per 500 sq. ft. Large—Over 5,000 sq. ft. 1 per 1,000 sq. ft. Industry, Marine -Related 1 per 750 sq. ft. Personal Storage (Mini Storage) 2 for resident manager, plus additional for office as required by minor use permit 16-13 Ordinance No. 2020 - Page 9 of 14 Research and Development 1 per 500 sq. ft. Warehousing and Storage 1 per 2,000 sq. ft., plus one per 350 sq. ft. for offices. Minimum of 10 spaces per use Wholesaling 1 per 1,000 sq. ft. Recreation, Education, and Public Assembly Uses Assembly/Meeting Facilities 1 per 3 seats or one per 35 sq. ft. used for assembly purposes Commercial Recreation and Entertainment As required by conditional use permit Cultural Institutions 1 per 300 sq. ft. Schools, Public and Private As required by conditional/minor use permit Residential Uses Accessory Dwelling Units As required per Section 20.48.200 Single -Unit Dwellings—Attached 2 per unit in a garage Single -Unit Dwellings—Detached and less than 4,000 sq. ft. of floor area 2 per unit in a garage Single -Unit Dwellings—Detached and 4,000 sq. ft. or greater of floor area 3 per unit in a garage Single -Unit Dwellings—Balboa Island 2 per unit in a garage Multi -Unit Dwellings -3 units 2 per unit covered, plus guest parking, 1-2 units, no guest parking required 3 units, 1 guest parking space Multi -Unit Dwellings -4 units or more 2 per unit covered, plus 0.5 space per unit for guest parking Two -Unit Dwellings 2 per unit; 1 in a garage and 1 covered or in a garage Live/Work Units 2 per unit in a garage, plus 2 for guest/customer parking Senior Housing—Market rate 1.2 per unit Senior Housing—Affordable 1 per unit Retail Trade Uses Appliances, Building Materials, Home Electronics, Furniture, Nurseries, and Similar Large Warehouse -type Retail Sales and Bulk Merchandise Facilities 1st 10,000 sq. ft. -1 space per 300 sq. ft. Over 10,000 sq. ft. -1 space per 500 sq. ft. Plus 1 per 1,000 sq. ft. of outdoor merchandise areas Food and Beverage Sales 1 per 200 sq. ft. Marine Rentals and Sales Boat Rentals and Sales 1 per 1,000 sq. ft. of lot area, plus 1 per 350 sq. ft. of office area 16-14 Ordinance No. 2020 - Page 10 of 14 Marine Retail Sales 1 per 250 sq. ft. Retail Sales 1 per 250 sq. ft. Shopping Centers 1 per 200 sq. ft. See Section 20.40.050 Service Uses—Business, Financial, Medical, and Professional Convalescent Facilities 1 per 3 beds or as required by conditional use permit Emergency Health Facilities 1 per 200 sq. ft. Financial Institutions and Related Services 1 per 250 sq_ ft. Hospitals 1 per bed; plus 1 per resident doctor and 1 per employee. Offices*—Business, Corporate, General, Governmental First 50,000 sq. ft. Next 75,000 sq. ft. Floor area above 125,001 sq. ft. * Not more than 20% medical office uses. 1 per 250 sq. ft. net floor area 1 per 300 sq. ft. net floor area 1 per 350 sq. ft_ net floor area Offices—Medical and Dental Offices 1 per 200 sq. ft. Outpatient Surgery Facility 1 per 250 sq. ft. Service Uses—General Adult -Oriented Businesses 1 per 1.5 occupants or as required by conditional use permit Ambulance Services 1 per 500 sq. ft.; plus 2 storage spaces. Animal Sales and Services Animal Boarding/Kennels 1 per 400 sq. ft. Animal Grooming 1 per 400 sq. ft. Animal Hospitals/Clinics 1 per 400 sq. ft. Animal Retail Sales 1 per 250 sq. ft. Artists' Studios 1 per 1,000 sq. ft. Catering Services 1 per 400 sq. ft. Care Uses Adult Day Care—Small (6 or fewer) Spaces required for dwelling unit only Adult Day Care—Large (7 or more) 2 per site for drop-off and pick-up purposes (in addition to the spaces required for the dwelling unit) Child Day Care—Small (6 or fewer) Spaces required for dwelling unit only Child Day Care—Large (9 to 14) 2 per site for drop-off and pick-up purposes (in addition to the spaces required for the dwelling unit) 16-15 Ordinance No. 2020 - Page 11 of 14 Day Care General 1 per 7 occupants based on maximum occupancy allowed per license Residential Care—General (7 to 14) 1 per 3 beds Eating and Drinking Establishments Accessory (open to public) 1 per each 3 seats or 1 per each 75 sq. ft. of net public area, whichever is greater Bars, Lounges, and Nightclubs 1 per each 4 persons based on allowed occupancy load or as required by conditional use permit Food Service with/without alcohol, with/without late hours 1 per 30-50 sq. ft. of net public area, including outdoor dining areas exceeding 25% of the interior net public area or 1,000 sq. ft., whichever is less. See Section 20.40.060 Food Service—Fast food 1 per 50 sq. ft., and 1 per 100 sq. ft. for outdoor dining areas Take -Out Service—Limited 1 per 250 sq. ft. Wine Tasting Room 1 per each 4 persons based on allowed occupancy load or as required by conditional use permit Emergency Shelter 1 per 4 beds plus 1 per staff; and if shelter is designed with designated family units then 0.5 parking space per bedroom designated for family units Funeral Homes and Mortuaries 1 per 35 sq. ft. of assembly area Health/Fitness Facilities Small -2,000 sq. ft. or less 1 per 250 sq. ft. Large—Over 2,000 sq. ft. 1 per 200 sq. ft. Laboratories (medical, dental, and similar) 1 per 500 sq. ft. Maintenance and Repair Services 1 per 500 sq. ft. Marine Services Boat Storage—Dry 0.33 per storage space or as required by conditional use permit Boat Yards As required by conditional use permit Dry Docks 2 per dry dock Entertainment and Excursion Services 1 per each 3 passengers and crew members Marine Service Stations As required by conditional use permit Sport Fishing Charters 1 per each 2 passengers and crew members Water Transportation Services—Office 1 per 100 sq. ft., minimum 2 spaces 16-16 Ordinance No. 2020 - Page 12 of 14 Personal Services Massage Establishments 1 per 200 sq. ft. or as required by conditional use permit Nail Salons 1 per 80 sq. ft. Personal Services, General 1 per 250 sq. ft. Studio (dance, music, and similar) 1 per 250 sq. ft. Postal Services 1 per 250 sq. ft. Printing and Duplicating Services 1 per 250 sq. ft. Recycling Facilities Collection Facility—Large 4 spaces minimum, but more may be required by the review authority Collection Facility—Small As required by the review authority Visitor Accommodations Bed and Breakfast Inns 1 per guest room, plus 2 spaces Hotels and accessory uses As required by conditional use permit Motels 1 per guest room or unit Recreational Vehicle Parks As required by conditional use permit Time Shares As required by conditional use permit Transportation, Communications, and Infrastructure Uses Communication Facilities 1 per 500 sq. ft. Heliports and Helistops As required by conditional use permit Marinas 0.75 per slip or 0.75 per 25 feet of mooring space Vehicle Rental, Sale, and Service Uses Vehicle/Equipment Rentals Office Only 1 per 250 sq. ft. Limited 1 per 300 sq. ft., plus 1 per rental vehicle (not including bicycles and similar vehicles) Vehicle/Equipment Rentals and Sales 1 per 1,000 sq. ft. of lot area Vehicles for Hire 1 per 300 sq. ft., plus 1 per each vehicle associated with the use and stored on the same site Vehicle Sales, Office Only 1 per 250 sq. ft., plus 1 as required by DMV Vehicle/Equipment Repair (General and Limited) 1 per 300 sq. ft. or 5 per service bay, whichever is more Vehicle/Equipment Services 16-17 Ordinance No. 2020 - Page 13 of 14 Automobile Washing 1 per 200 sq. ft. of office or lounge area; plus queue for 5 cars per washing station Service Station 1 per 300 sq. ft. or 5 per service bay, whichever is more; minimum of 4 Service Station with Convenience Market 1 per 200 sq. ft., in addition to 5 per service bay Vehicle Storage 1 per 500 sq. ft. Otfwr Uses Caretaker Residence 1 per unit Special Events As required by Chapter 11.03 Temporary Uses As required by the limited term permit in compliance with Section 20.52.040 Section 5: Subsection (10) is added to include the definition of "Wine Tasting Room" to the definition of "Eating and Drinking Establishments (Land Use)" within Section 20.70.020 (Definitions of Specialized Terms and Phrases) of Chapter 20.70 (Definitions) of the NBMC to read as follows: Eating and Drinking Establishments (Land Use). See also "Alcohol sales, on -sale" and "Drive-through facilities." 10. "Wine Tasting Room" means an establishment that operates pursuant to an ABC Type 2 (Winegrower) license to provide the sale of wine that is produced by said winery for on- and off-site consumption. The sale of other types of alcohol, such as beer and distilled spirits, shall be expressly prohibited. Section 6: The recitals provided in this ordinance are true and correct and are incorporated into the substantive portion of this ordinance. Section 7: If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. 16-18 Ordinance No. 2020 - Page 14 of 14 Section 8: The City Council finds the introduction and adoption of this ordinance is not a project subject to CEQA in accordance with Section 21065 of CEQA and CEQA Guideline Sections 15060 (c)(2), 15060 (c)(3), and 15378 of the California Code of Regulations Title 14, Division 6, Chapter 3. Zoning Code Amendment No. CA2020-005 is also exempt pursuant to CEQA Guidelines Section 15061(b)(3), because it has no potential to have a significant effect on the environment. Section 9: Except as expressly modified in this ordinance, all other sections, subsections, terms, clauses and phrases set forth in the NBMC shall remain unchanged and shall be in full force and effect. Section 10: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be published pursuant to City Charter Section 414. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 25th day of August, 2020, and adopted on the 8th day of September, 2020, by the following vote, to -wit: AYES: NAYS: ABSENT: WILL O'NEILL, MAYOR ATTEST: LEILANI I. BROWN, CITY CLERK APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE AARON C. HARP, CITY ATTORNEY 16-19 Attachment B Redlined Zoning Code Text Changes 16-20 TITLE 20 (PLANNING AND ZONING) 20.24.020 Industrial Zoning District Land Uses and Permit Requirements. Table 2-12 Land Use IG Specific Use Regulations Service Uses - General Eating and Drinking Establishments Take -Out Service - Limited P Section 20.48.090 Wine Tasting Room (1) CUP Section 20.48.090 (1) Wine Tasting Room Hours of Operation. The permitted hours of operation that the establishment is open to the public shall be limited to Monday through Friday from 4:00 p.m. to 11:00 p.m. and Saturday and Sunday from 12:00 p.m. to 11:00 p.m. 20.40.040 Off -Street Parking Spaces Required. Table 3-10 Land Use Parking Spaces Required Service Uses—General Eating and Drinking Establishments Wine Tasting Room 1 per each 4 persons based on allowed occupancy load or as required by conditional use permit 20.48.090 Eating and Drinking Establishments This section provides standards for the establishment and operation of eating and drinking establishments. A. Standards - All Eating and Drinking Establishments. 1. Outdoor Activities. Activities shall be conducted entirely within an enclosed structure, except for the following, which shall not be located between the activity and the side of a structure adjacent to a residential zoning district. a. The checking of patrons' identification; b. Valet parking activities; c. Outdoor dining when in compliance with the standards in subsection (D) of this section (Standards—Outdoor Dining); d. Outdoor smoking areas in compliance with State law; e. Queuing of patrons, which shall be managed to: 16-21 i. Allow pedestrian passage on the sidewalk; and ii. Not be adjacent to residential zoning districts and residential uses. 2. Outdoor Storage. Outdoor storage of boxes, equipment, materials, merchandise, and other similar items shall be allowed if the storage area is: a. Screened from public view, subject to the Director's approval; and b. Dedicated for storage only; provided, that the dedicated area shall not occupy required parking spaces or open space areas. 3. Solid Waste Storage. The review authority may require storage areas and receptacles that are in addition to the requirements for solid waste storage areas in Section 20.30.120 (Solid Waste and Recyclable Materials Storage). B. Standards - On -Sale Alcohol Sales. 1. Operational Standards. In addition to the standards in subsection (A) of this section, the following standards shall apply to eating and drinking establishments that sell, serve, or give away alcohol: a. Sales Activities. Alcoholic beverages shall not be sold, served, or given away: i. Outside of the exterior walls of the eating and drinking establishment, except for approved outdoor dining areas; ii. From drive -up or walk-up service windows; or iii. To persons in watercraft. b. Litter and Graffiti. The owner/operator shall: i. Maintain the exterior of the premises, including signs and accessory structures, free of litter and graffiti at all times; ii. Provide for daily removal of trash, from the premises and abutting sidewalks or alleys within twenty (20) feet of the premises; and iii. Remove graffiti within forty-eight (48) hours of written notice from the City. c. Security. The review authority may require the eating and drinking establishment to provide security personnel, security programs, and/or surveillance devices. d. Sales Training. i. Owners, operators, servers, vendors, and persons selling, serving, or giving away alcoholic beverages shall complete a Licensee Education on Alcohol and Drugs (LEAD) program sponsored by the Department of Alcoholic Beverage Control. ii. Records of each owner's, operator's, server's, vendor's, and employee's successful completion of the LEAD training program shall be maintained on the premises and shall be presented to a representative of the City upon request. 16-22 e. Conditions of Approval. The owner/operator shall maintain a copy of the most recent City permit conditions of approval on the premises and shall post a notice that these are available for review on the premises. The posted notice shall be signed by the permittee. f. Public Telephones. Upon request of the Police Chief or as required by the ABC, a public telephone located on the premises or in an adjacent area under the control of the owner/operator shall be equipped with devices or mechanisms that prevent persons from calling in to that public telephone. 2. Development Standards. a. Signs. Signs shall comply with Chapter 20.42 (Sign Standards). In addition, the following shall apply: i. Window signs shall not obstruct the view of the interior of the premises (e.g., sales counter, cash register, employees, customers, etc.) from the exterior. ii. Loitering, open container, and other signs specified by the Alcoholic Beverage Control Act shall be posted as required by the ABC. b. Site and Floor Plans. The site and floor plans of an eating and drinking establishment that sells, serves, or gives away alcohol shall incorporate design features to reduce alcohol-related problems. The review authority may require the incorporation of preventive design features (e.g., openness to surveillance and control of the premises, the perimeter, and surrounding properties; reduction of opportunities for congregating and obstructing public rights-of-way and neighboring property; illumination of interior and exterior areas; and limiting furnishings and features that encourage loitering and nuisance behavior) and other safety features (e.g., security, restrooms, additional exits, etc.). C. Standards - Noise Control Late -Hour Operations. To encourage appropriate patron conduct, the owner/operator of an eating and drinking establishment that sells, serves, or gives away alcohol shall post signs at clearly visible locations within the establishment and at both on-site and off-site parking areas under the owner/operator's control. The signs shall request patrons to keep noise to a minimum. D. Standards - Outdoor Dining (Including Late -hour Operations). 1. Public Property. Outdoor dining on public property shall comply with Chapter 13.18 (Use of Public Sidewalks for Outdoor Dining) and the standards of the Public Works Department. 2. Private Property. Outdoor dining on private property shall comply with the following standards: a. Barriers. Appropriate barriers shall be placed between outdoor dining areas and parking, pedestrian, and vehicular circulation areas. Barriers shall serve only to define the areas and shall not constitute a permanent all-weather enclosure. b. Associated Elements. Physical elements (e.g., awnings, covers, furniture, umbrellas, etc.) that are visible from public rights-of-way shall be compatible with one another and with the overall character and design of the principal structure(s). 16-23 E. Standards - Bars, Nightclubs, and Lounges. Bars, nightclubs, and lounges shall comply with the standards in subsections (A) through (D) of this section. In addition, the structure in which the bar, nightclub, or lounge is located shall be adequately soundproofed so that interior noise is not audible beyond the lot line with the doors and windows closed. F. Standards - Wine Tasting Rooms. In addition to the standards set forth in subsection (A) through (D), wine tasting rooms shall comply with the following standards: 1. The building in which the wine tasting room is located shall be a minimum of 500 feet from the property line of any property that contains an elementary, middle, or high school. 2. The wine tasting room shall operate under a ABC Type 2 (Winegrower) license only. 3. The wine tasting room shall not operate as a bona fide eating establishment, but may serve incidental foods such as bread, crackers, cheeses or nuts. Any kitchen or food preparation area provided shall have no cooking equipment that requires a mechanical ventilation system to exhaust heat, steam or grease vapor. 4. Limited private events may occur within the wine tasting room, provided the wine tasting room remains open to the public. 5. Live entertainment is prohibited. G. Permit Requirements. 1. New Establishments. Permits and licenses required by Title 5 (Business Licenses and Regulations) shall be obtained for new eating and drinking establishments, in addition to permits required by Part 2 of this title (Zoning Districts, Allowable Land Uses, and Zoning District Standards). 2. Existing Establishments. An existing eating and drinking establishment, including bars, lounges, and nightclubs, shall obtain permits and licenses required by Title 5 (Business Licenses and Regulations) in the following circumstances: a. Substantial Change. When there is a substantial change in operation including any of the following: i. An application for, or a change in type of, retail liquor license from the Department of Alcoholic Beverage Control; ii. An increase in the floor area principally devoted to alcohol sales by twenty-five (25) percent or more or by two hundred fifty (250) square feet or more, whichever is less; or iii. A reinstatement of alcohol sales after the ABC has revoked or suspended the existing ABC license for a period of longer than thirty (30) days. b. Objectionable Conditions. When the establishment is operated or maintained under objectionable conditions that constitute a public nuisance, including any of the following: 16-24 i. A pattern of documented violations of the permit conditions, this Zoning Code, the Municipal Code, the Penal Code, or other State statutes; or ii. A pattern of substantiated complaints of activity constituting evidence of a nuisance. 3. Review Criteria. a. Late -Hour Operations. When reviewing an application to allow late -hour operations, the review authority shall consider the following potential impacts upon adjacent or nearby uses: i. Noise from music, dancing, and voices associated with allowed indoor or outdoor uses and activities; ii. High levels of lighting and illumination; iii. Increased pedestrian and vehicular traffic activity during late night and early morning hours; iv. Increased trash and recycling collection activities; v. Occupancy loads of the use; and vi. Any other factors that may affect adjacent or nearby uses. b. Outdoor Dining. When reviewing an application to allow outdoor dining, the review authority shall consider the relation of outdoor dining areas to sensitive noise receptors (e.g., hospitals, schools, and residential uses). Mitigation measures shall be applied to eliminate potential impacts related to glare, light, loitering, and noise. c. On -Sale Alcohol Sales. When reviewing an application to allow an eating or drinking establishment to sell, serve, or give away alcohol, the review authority shall: i. Evaluate the potential impacts upon adjacent uses outlined in subsection (F)(3)(a) of this section (Late -Hour Operations). For the purposes of this subsection, "adjacent uses" shall mean those uses within one hundred (100) feet of the proposed use, as measured between the nearest lot lines; ii. Consider the proximity to other establishments selling alcoholic beverages for either off-site or on-site consumption; and iii. Make the findings in Section 20.48.030(C)(3) (alcohol sales—off-sale). 4. Post -Decision Procedures. a. With On -Sale Alcohol Sales. For establishments with permits for on -sale alcohol sales, the post -decision procedures in Section 20.48.030(C)(4) shall apply. b. Without On -Sale Alcohol Sales. For establishments that do not sell, serve, or give away alcohol, the procedures and requirements in Chapter 20.54 (Permit Implementation, Time Limits, and Extensions), and those related to appeals in Part 6 of this title (Zoning Code Administration) shall apply 16-25 20.70.020 Definitions of Specialized Terms and Phrases. Eating and Drinking Establishments (Land Use). See also "Alcohol sales, on -sale" and "Drive- through facilities." 1. Accessory food service" means a type of food service establishment that: a. Sells food and/or beverages as an accessory use in a retail, office, or institutional structure; b. Does not change the character of the principal use; c. Does not sell, serve, or give away alcoholic beverages; d. Does not have an entrance separate from the principal use; and e. Has hours of operation that are the same as those of the principal use. 2. Bar, lounge, and nightclub" means an establishment that sells or serves alcoholic beverages for consumption on the premises and is holding or applying for a public premises license from the California State Department of Alcoholic Beverage Control (ABC) (i.e., ABC License Type 42 (On -Sale Beer and Wine—Public Premises), ABC License Type 48 (On -Sale General—Public Premises), and ABC License Type 61 (On -Sale Beer—Public Premises)). Persons under twenty-one (21) years of age are not allowed to enter and remain on the premises. The establishment shall include any immediately adjacent area that is owned, leased, rented, or controlled by the licensee. 3. Fast food" means an establishment whose design or principal method of operation includes four or more of the following characteristics: a. A permanent menu board is provided from which to select and order food; b. A chain or franchise restaurant; c. Customers pay for food before consuming it; d. A self-service condiment bar and/or drink service is/are provided; e. Trash receptacles are provided for self-service bussing; and f. Furnishing plan indicates stationary seating arrangements. A fast food establishment may or may not have late hour operations (see "Late hour operations"). Alcoholic beverages are not sold, served, or given away on the premises. If alcoholic beverages are sold, served, or given away on the premises, the use shall be considered a food service use. See "Food service." 4. Food service, no late hours" means an establishment that sells food and beverages, including alcoholic beverages, prepared for primarily on-site consumption, and that has all of the following characteristics: a. Establishment does not have late hour operations (see "Late hour operations"); b. Customers order food and beverages from individual menus; 16-26 c. Food and beverages are served to the customer at a fixed location (i.e., booth, counter, or table); and d. Customers pay for food and beverages after service and/or consumption. 5. Food service, late hours" means an establishment that sells food and beverages, including alcoholic beverages, prepared for primarily on-site consumption, and that has all of the following characteristics: a. Establishment does have late hour operations (see "Late hour operations"); b. Customers order food and beverages from individual menus; c. Food and beverages are served to the customer at a fixed location (i.e., booth, counter, or table); and d. Customers pay for food and beverages after service and/or consumption. 6. Late hour operations" means facilities that provide service after 11:00 p.m. 7. Outdoor dining, accessory" means an outdoor dining area contiguous and accessory to a food service establishment. 8. Take-out service, limited" means an establishment that sells food or beverages and that has all of the following characteristics: a. Sales are primarily for off-site consumption; b. Customers order and pay for food at either a counter or service window; c. Incidental seating up to six seats may be provided for on-site consumption of food or beverages; and d. Alcoholic beverages are not sold, served, or given away on the premises. Typical uses include bakeries, candy, coffee, nut and confectionery stores, ice cream and frozen dessert stores, small delicatessens, and similar establishments. 9. Take-out service only" means an establishment that offers a limited variety of food or beverages and that has all of following characteristics: a. Sales are for off-site consumption; b. Seating is not provided for on-site consumption of food or beverages; and c. Alcoholic beverages are not sold, served, or given away on the premises. 10. "Wine Tasting Room" means an establishment that operates pursuant to an ABC Type 2 (Winegrower) license winery to provide the sale of wine that is produced by said winery for on - and off-site consumption. The sale of other types of alcohol, such as beer and distilled spirits, shall be expressly prohibited. 16-27 Attachment C Ordinance No. 2010-17 16-28 ORDINANCE NO. 2010-17 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING CODE AMENDMENT NO. CA2010-005 TO APPLY THE INTERIM STUDY (IS) OVERLAY DISTRICT BY REVISING DISTRICTING MAP NOS. 22 AND 25 APPLICABLE TO PROPERTY LOCATED AT 869 WEST 161h STREET AND APPROVING A STUDY PLAN TO ALLOW FOOD PROCESSING USES (PA 2010-078) WHEREAS, an application was filed by the Newport Beach Wine Company and Winery, Inc. with respect to property located at 869 West 16th Street, and legally described as First Addition to Newport Mesa Tract, Lot 913, Westerly 396 feet, requesting approval of a code amendment to apply the interim study overlay district designation and approval of a Study Plan to allow Food Processing as an allowed use at the subject property in advance of the proposed Zoning Code update; and WHEREAS, as part of the General Plan Implementation Program, the City Council adopted Resolution No. 2007-3 establishing an interim development review process to provide a mechanism for projects that are consistent with the General Plan but inconsistent with the current zoning regulations. This process requires project proponents to request approval of a Code Amendment to apply the Interim Study (IS) Overlay District zoning designation on the property. A development Study Plan is required to establish development regulations to implement the General Plan; and WHEREAS, the subject property is located within the Controlled Manufacturing (M- 1-A)Zoning District. The proposed winery is designated as "Food Processing" by Section 20.05.060 (industrial Use Classifications) of the Zoning Code. Per Section 20.20.020 (Industrial Districts: Land Use Regulations) of the Zoning Code, Food Processing is not an allowed use in the M-1 -A District; and WHEREAS, the General Plan Land Use Element category for this property is Industrial (IG), which provides for a wide range of moderate to low intensity industrial uses, such as light manufacturing and research and development, and limited ancillary commercial and office uses; and WHEREAS, the proposed Study plan provided establishes development regulations to create Zoning Code consistency with the General Plan and is consistent with the provisions of Resolution No. 2007-003 and Chapter 20.53 (Interim Study (IS) Overlay District) of the Newport Beach Municipal Code; and WHEREAS, this project is categorically exempt under the requirements of the California Environmental Quality Act under Section 15301, of the California Environmental Quality Act (CEQA) Guidelines — Class 1 (Existing Facilities), which exempts minor alterations to existing facilities. The proposed project includes a change in use and interior alterations within an existing industrial building; and 16-29 WHEREAS, on August 5, 2010, the Planning Commission conducted a public hearing in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting. At the conclusion of the public hearing the Planning Commission voted (6 ayes, 1 absent) to recommend City Council approval of the proposed Code Amendment by adopting Resolution No. 1817; and WHEREAS, the City Council conducted a public hearing on September 14, 2010, in the City Hall Councils Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Municipal Code. Evidence, both written and oral, was presented to, and considered by, the City Council at this meeting; and WHEREAS, In accordance with City Council Resolution No. 2007-3 establishing the Interim Study process, the following findings and facts in support of such findings are set forth Finding: A. The proposed plan implements and is in compliance with all applicable policies of the General Plan. Facts in Support of Finding: A-1. The project site is designated as Industrial (IG) by the Land Use Element of the General Plan. The proposed project is consistent with the IG Land Use Category, which is intended to provide for a wide range of moderate to low intensity industrial uses, such as light manufacturing and research and development, and limited ancillary commercial and office uses. Wine production is a moderate to low intensity industrial use that is consistent with the IG General Plan Land Use Category. A-2. The proposed project is consistent with Goal LU 5.5 because the immediately adjacent properties are industrial. The use will not involve new exterior equipment or storage that would detract from the existing aesthetic of the building. A-3. The proposed project is consistent with Goal LU 6.7 because this food production use is contained within an existing building and would not noticeably change the makeup of the district. Approval of the project to allow the proposed use is consistent with Goal LU 6.7 and Policy LU 6.7.1 because it provides an opportunity for entrepreneurship for a food processing use in an established light industrial area. 16-30 B. The proposed plan conforms to all applicable design guidelines, such as those included in the Mariner's Mile Design Framework, and any existing Specific Plan design guidelines. Facts in Support of Finding: B-1. There are no design guidelines for this area and the area is not subject to a Specific Plan. C. Any changes from existing zoning regulations that otherwise would apply are justified by compensating benefits of the proposed plan. Facts in Support of Finding: C-1. Changing the permitted uses to allow for "Food Processing" in this IS Overlay District is justified by the benefits of having a new small business in the City. D. The proposed development and/or use and its development and operation as proposed in the Study Plan will not be detrimental to the public health, safety and welfare of the persons residing in or working in the proposed structures or in developments adjacent to the proposed project, properties or improvements in the vicinity or to the general welfare of the City. Facts in Support of Finding: D-1. The properties immediately adjacent to the subject site are being used for industrial uses. D-2. The sale of alcoholic beverages is licensed and controlled by the State Department of Alcoholic Beverage Control (ABC). The wine tasting will be accessory to the wine production use. D-3. There is adequate parking on site to support the existing uses on site and the proposed use. D-4. There will be no outside storage of equipment and the trash receptacle will have a cover, which will prevent any potential negative odor impacts; and WHEREAS, the City Council finds that judicial challenges to the City's CEQA determinations and approvals of land use projects are costly and time consuming. In addition, project opponents often seek an award of attorneys' fees in such challenges. As project applicants are the primary beneficiaries of such approvals, it is appropriate that such applicants should bear the expense of defending against any such judicial challenge, and bear the responsibility for any costs, attorneys' fees, and damages which may be awarded to a successful challenger. 16-31 THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1: The Study Plan is approved as provided in Exhibit A, which is incorporated by reference herein. SECTION 2: Districting Map Nos. 22 and 25 shall be amended as provided in Exhibit B, which is incorporated by reference herein. SECTION 3: This action shall become null and void and the M -1 -A -IS District designation for the subject property will be eliminated upon the adoption of the comprehensive Zoning Code update. SECTION 4: If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. SECTIONS: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the same to be published once in the official newspaper of the City, and it shall be effective thirty (30) days after its adoption. SECTION 6: This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the 14th day of September 2010, and adopted on the 28t" day of September 2010, by the following vote, to wit: AYES, COUNCILMEMBERS Selich, Rosansky, Henn, Webb, Gardner, Daigle, Mayor Curry NOES, COUNCILMEMBERS None ABSENT COUNCILMEMBERS None 442 MAYOR ATTEST: CITY CLERK 16=32 APPROVED A5 TO FORM: a("�j qlqttD David R. Hunt, City A orney For the City of Newpo Beach 16-33 CODE AMENDMENT NO. CA2010-005 STUDY PLAN FOR 869 WEST 16TH STREET EXHIBIT - A 16-34 Study Plan For Newport Beach Wine Company & Winery Inc. 869 West 16t" Street Newport Beach, CA. Proiect Description and Justification Proposed Project Newport Beach Wine Company and Winery Inc. (NB Wine Company) has leased and proposed to use property located at 869 West 16th Street, Newport Beach, CA (Premises) to manufacture, bottle, and sell wine. The leased space is part of a large industrial building divided into eight (8) similarly sized units. The subject space is approximately 2,500 SF which includes a small office and employee area (approx. 700 SF) in the front of the building, and the remaining space to be used for wine production, barrel, tanks, case storage, and wine tasting (1800 SF) in the rear. The current space has access to five (5) unreserved vehicle parking spaces. Retail sales will be restricted to weekends only. NB Wine Company will act as a typical winery; bringing in fresh or frozen grapes for pressing or chilled or frozen grape juice, fermenting, producing, barrel fermentation, bottling, and blending wine, allowing tasting, and will sell some wine to consumers from the premises. Imine Making Equipment The facility will have all the necessary winemaking equipment required for the production, bottling and storage of fine wine. Delivery of Grapes and Production of Wine NB Wine Company will purchase both fresh and frozen grapes from growers in Central and Northern California. The grapes will be delivered by commercial carrier/trucking company. The grapes will be crushed and processed into juice to be stored in fermentation tanks located in the production warehouse area. The wine will be monitored and later pumped into barrels for aging. Once aged appropriately, the wine will be bottled, labeled, boxed, and stored for sale. Recycling and Waste Management The production of wine will be as "green" as possible given the size of the production facility. Grape stems, seeds, skins and corks) will be removed and consisting of cardboard, paper and disposed by standard trash disposal. Study Plan CA2010-005 and other natural by-products (e.g., yeast residue composted off site. All other production waste glass will be recycled. Office related waste will be 16=35 Retail Wine Sales and Tasting Wine will be available for sale to consumers on weekends only or by mail-order. No consumption of purchased wine will be permitted on the premises. Wines will be sold for off-site consumption by the bottle or case. It is anticipated that most wine will be purchased then shipped via common carrier (UPS or FedEx) to consumers and retailers. A small tasting bar comparable to Napa Valley will be available for tastings. Tastings to the trade (retailers, restaurants and distributors) will be by appointment during the week and weekends from 11:00 am to 9:30 pm. Retail tasting for consumers will be held on weekends only from 11:00 am to 9:30 pm. Retail tasting will be $10.00 and include a logo wine glass. Retail tastes will be limited to one & one half ounce (1 1/2 oz.) pours with a limit of six (6) total tastes. Wine will be poured by one & one half ounce tastes, not by the glass. Tastings will be supervised by an employee who will also provide information about each wine that is tasted. Justification The current and proposed zoning permits low to moderate intensity industrial uses. The manufacturing of wine is a compatible use as no heavy machinery, loud noises or intense fumes, waste or byproducts are produced. Wine making is similar to food production in that raw natural food/consumable products are processed and packaged for sale. Like food production, winemaking is heavily regulated and inspected as the ultimate product is for human consumption. While not specifically permitted or mentioned in the current Zoning Code, permitting production of wine will not negatively impact the general health, safety or welfare of the public and is consistent with the General Pian. As you are aware, we are a tenant in an existing Industrially Zoned building. Additionally, it will not impact the other users in the building that will continue to operate various manufacturing operations. General Plan Consistency The project site is designated as Industrial (IG) by the Land Use Element of the General Plan. The IG land use category is intended to provide for a wide range of moderate to low intensity industrial uses, such as light manufacturing and research and development, and limited ancillary commercial and office uses. The applicant's proposed use is a moderate to low intensity industrial -type use that would appear to be consistent with the IG General Plan Land Use Category. Zoning The current zoning for the project is M -1-A (Controlled Manufacturing). The intent of this Study Plan is to set permitted uses and development standards for the Interim Study Overlay District. Study Plan CA2010-005 2 1&36 Permitted Uses The current Zoning Code permits controlled low to moderate intensity industrial uses, but does not specifically permit food processing, however proposed Draft Zoning Code does permit food processing. This Interim Study Overlay District shall allow "Food Processing" as a permitted use. All other permitted uses allowed in the current Zoning Code Section 20.20.020 (Industrial Districts: Land Use Regulations) shall be permitted in this IS Overlay District. Development Standards All development standards addressed in the current Zoning Code Section 20.20.030 (Industrial Districts: Property Development Regulations) and other relevant sections of the Municipal Code shall be applicable in this IS Overlay District, unless otherwise specified below. Lot Dimensions FAR Lot Area: 10,000 square feet Lot Width: 0 feet Industrial FAR: 0.75 Setbacks Front: 15 feet Sides: 0 feet Rear: 0 feet Parking Food Processing: 1 space for each 2,000 square feet of gross floor area All other uses: pursuant to Chapter 20.66 of the Zoning Code Landscaping Per Chapter 20.36 (Landscaping Standards) of the draft Zoning Code Per Water Efficient Landscape Ordinance, Chapter 14.17 of the Municipal Code Study Plan CA2010-005 3 16-37 CODE AMENDMENT NO. CA2010-005 DISTRICTING MAP NOS. 22 and 25 EXHIBIT - B 16-38 0*CO6�v i q SPWA6! p 9AaSP,(. F4fNT R—I p T �89 I Y /INNk�pD/qiA D¢M,1p- y6, a� carrI 40CA a .¢c e E ieiaN ofA NR 9S0 PoP. [/�,a! ux /P3.WA'.'bN fAaM R-/ To A ORW NO. 9@P pen ,va /ese .Lar /PQ srn2 SLI,/Y/say, ./.s-'s%m.f/Pwa- F4eM •b- Ps 43�C-nN Aas.•r-cww-l4a �o- ORD- No. N49 Pax oT �!I9•A.m ITo PRPN Rte/ ra ?P+a 042. 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Is, fie3TAm r6iElUfileT%7.�d o APF APFP FIE149D, FFIaM R -3(a1181 Ta APF -f-A710 [A9T Aeu/9lov dune 21, 2004 P DISTRICTING APF P -C \ MAP ra 2 ON c --Qk 13 ;" a � so � E q n h o aFK spzo •✓'' �`� APF S � m £ f Arf4�av T0 A PF ,fd y �p NPA J 4 HGSP/rAL Q �p 4 L RES, Ha, STReer NN1* CHANGE-NORYH W?N?f Rr 131'D, ra -13-3x olo NE4P RT WYO. 10-26-93 AMeR6.$3T LO 748, MALT 633 cv*ge.o rum R1, N MVR ZaNa. 3-11-%, SFE MAP No. 22-A REY181OH8 AMENaMENT WCATION3 CAT[ NEW PORT BEACH — CALIFORNIA MHP 144WIE NOME PAR9 OIASQLA Y ZaVE 3 REST -0 MULTIPLE FAMILY RESIDENTI SINGLE FAMILY RESIDENTIAL C -I LIGHT COMMERCIAL R-2 DUPLEX RESIDENTIAL GENERAL COMMERCIAL FR MULTIPLE FAMILYPE51DENTIAL MANUFACTURING Q COMBINING DISTRICTS © UNCLASSIFIED FRONT YARD DEPTH IN FEET SHOWN THUS: -10- +r t x .e9m oan:va ea-. Ams Atl 8315 aeDw4 56-3Z Mer.p-A�y w. Is, fie3TAm r6iElUfileT%7.�d STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH 1 I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance No. 2010-17 was duly and regularly introduced on the 14th day of September, 2010, and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 28th day of September, 2010, and that the same was so passed and adopted by the following vote, to wit: Ayes: Selich, Rosansky, Henn, Webb, Gardner, Daigle, Mayor Curry Noes: None Absent: None Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 29th day of September, 2010. (Seal) P Jif City Clerk �t City of Newport Beach, California CERTIFICATE OF PUBLICATION STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, LEILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify that Ordinance No. 2010-17 has been duly and regularly published according to law and the order of the City Council of said City and that same was so published in The Daily Pilot, a daily newspaper of general circulation on the following dates: 2010. Introduced Ordinance: September 18, 2010 Adopted Ordinance: October 2, 2010 In witness whereof, I have hereunto subscribed my name this day of 0&h1w- City Clerk U City of Newport Beach, California RN%P 16-41 Attachment D Planning Commission staff report, dated July 23, 2020 16-42 p° CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT July 23, 2020 C'gLIFpR�P Agenda Item No. 4 SUBJECT: Industrial Zoning District Code Amendments (PA2020-042) ■ Code Amendment No. CA2020-005 SITE LOCATION: Industrial Zoning (IG) District APPLICANT: City of Newport Beach PLANNER: David Blumenthal, AICP, Planning Consultant 949-644-3200, dblumenthal(a�_newportbeachca.gov PROJECT SUMMARY The Industrial Zoning District (IG) currently limits eating and drinking establishments to "Take -Out Service — Limited" only. The proposed Zoning Code Amendment would allow Wine Tasting Rooms, subject to the approval of a conditional use permit in the IG zone. RECOMMENDATION 1) Conduct a public hearing; 2) Find this action proposed herein is not a project subject to the California Environmental Quality Act ("CEQA") in accordance with Section 21065 of the California Public Resources Code and Sections 15060 (c)(2), 15060 (c)(3), and 15378 of the California Code of Regulations Title 14, Division 6, Chapter 3 ("CEQA Guidelines"). The proposed action is also exempt pursuant to CEQA Guidelines Section 15061(b)(3), the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment; and 3) Adopt Resolution No. PC2020-029 recommending the City Council approve Zoning Code Amendment No. CA2020-005 to amend Sections 20.24.020 (Industrial Zoning District Land Uses and Permit Requirements), 20.40.040 (Off -Street Parking Spaces Required), 20.48.090 (Eating and Drinking Establishments), and 20.70.020 (Definitions of Specialized Terms and Phrases), of Title 20 (Planning and Zoning) of the Newport Beach Municipal Code (PA2020-042) (Attachment No. PC 1). 16-43 Industrial Zoning District Code Amendments (PA2020-042) Planning Commission, July 23, 2020 Page 2 DISCUSSION Background The Industrial (IG) Zoning District is located in the southwest portion of the City, near 16' Street and Placentia Avenue (see Figure 1), which is within the West Newport Mesa District (Attachment No. PC 2). The IG zone is intended to provide for areas appropriate for a wide range of moderate to low intensity industrial uses (e.g., light manufacturing and research and development) and limited accessory commercial and office uses. Figure 1 Uz;, LU Index I ' a IG Zone r 1 S 7 Orange Coast Winery PF LL 75 FA RM 3100+24205 Du- - ✓ .. ITIOETIR DSS p-51 MON PL/� H R r, 2.320 GA 2424 j 3100 Qllr J/i 0 1 420 SA` DU AR On April 14, 2020, the City Council adopted Resolution 2020-38, initiating the subject Code Amendment and directing staff to analyze allowing food and alcohol service in the IG zone (Attachments No. PC 3 and PC 4). Wine Tasting Room The amendment would establish "Wine Tasting Rooms" as a new subset of eating and drinking establishments within the Zoning Code; as well as allow them to operate within the IG zone, subject to approval of a Conditional Use Permit at a noticed public hearing by the Planning Commission. A wine tasting room operates under a Department of Alcoholic Beverage Control (ABC) Type 2 (Winegrower) license. ABC will only issue a duplicate Type 2 license for operation of a wine tasting room to a duly licensed winery. No production is allowed at the tasting room site and wine that is sold for on- or off-site consumption can only be produced at the winery that holds the master Type 2 license. ABC further prohibits the wine tasting rooms from operating as a bona fide eating place 16-44 Industrial Zoning District Code Amendments (PA2020-042) Planning Commission, July 23, 2020 Page 3 (i.e. no kitchen is permitted under State regulations). Notwithstanding the prohibition on providing food service, the operator is allowed to serve palate cleansers, such as charcuterie and cheese boards. The proposal includes the following changes to the Newport Beach Municipal Code (NBMC) (Attachment No. PC 5): • Section 20.24.020 (Industrial Zoning District Land Uses and Permit Requirements) would be amended to require a conditional use permit for the operation of a wine tasting room in the IG zone and would limit the hours of operations in the IG to Monday through Friday from 4:00 p.m. to 11:00 p.m. and Saturday and Sunday from 12:00 p.m. to 11:00 p.m. • Section 20.40.040 (Off -Street Parking Spaces Required) would be amended to add a parking requirement for wine tasting rooms. The parking requirement is proposed as one space per each four persons based on allowed occupancy load or as required by the conditional use permit. This parking requirement is consistent with the current code requirements for bars, lounges, and nightclubs • Section 20.48.090 (Eating and Drinking Establishments) would be amended to provide specific requirements for the wine tasting rooms. This includes a 500 -foot separation requirement from schools, as measured from the school property line to the building in which the wine tasting room is located, a 500 -foot separation between properties that have wine tasting rooms, a prohibition on live entertainment, and a prohibition on any food preparation equipment that would require a mechanical ventilation system. • Section 20.70.020 (Definitions of Specialized Terms and Phrases) would be amended to include the definition of wine tasting rooms within the definitions of an eating and drinking establishment. The operation of a wine tasting room in the IG zone is not unprecedented. In 2010, the City Council approved an Interim Study (IS) Overlay to allow the operation of the Newport Beach Wine Company located at 869 West 16th Street, which manufactured wine on-site and provided ancillary tastings (Attachment No. PC 6). However, the use, now known as the Orange Coast Winery, is requesting the ability to operate a dedicated tasting room with no on-site manufacturing. If this amendment is approved, Orange Coast Winery would be permitted to apply for a conditional use permit, consistent with the proposed regulations for wine tasting rooms. General Plan Consiste According to the General Plan, "[t]he IG designation is intended to provide for a wide range of moderate to low intensity industrial uses, such as light manufacturing and research and development, and limited ancillary commercial and office uses." The Zoning 16-45 Industrial Zoning District Code Amendments (PA2020-042) Planning Commission, July 23, 2020 Page 4 Code Amendment would allow wine tasting rooms with limitations within the IG zone, which are accessory to wine production, sales and distribution and ancillary to the industrial uses in vicinity. The wine tasting room would benefit those who live and work in the area, as it would provide for a location to try wine products before purchasing. Environmental Review The Code Amendment is not a project subject to the California Environmental Quality Act ("CEQA") in accordance with Section 21065 of the California Public Resources Code and Sections 15060 (c)(2), 15060 (c)(3), and 15378 of the California Code of Regulations Title 14, Division 6, Chapter 3 ("CEQA Guidelines"). The proposed action is also exempt pursuant to CEQA Guidelines Section 15061(b)(3), the general rule that CEQA applies only to projects, which have the potential for causing a significant effect on the environment. While this amendment would allow a new category of use in an existing zoning district, it does not authorize new development that would directly result in physical change to the environment. There is no evidence that alcoholic beverage service in the IG zone would result in any different or new effects on the environment than were already assumed with the IG zone. Public Notice Notice of this amendment was published in the Daily Pilot as an eighth page advertisement, consistent with the provisions of the Municipal Code. The item also appeared on the agenda for this meeting, which was posted at City Hall and on the City website. Prepared by: David Blumenthal, AICP Planning Consultant ATTACHMENTS Submitted by: Jim Campbell Deputy Community Development Director PC 1 Draft resolution recommending the City Council approve Zoning Code Amendment No. CA2020-005 PC 2 West Newport Mesa Map PC 3 City Council Resolution No. 2020-38 PC 4 City Council Minute excerpts, dated April 14, 2020 PC 5 Redlined Zoning Code text changes PC 6 City Council Ordinance No. 2010-17 16-46 Attachment E Planning Commission draft minute excerpts, dated July 23, 2020 16-47 Planning Commission Minutes July 23, 2020 Shawna Schaffner, applicant representative, indicated three parcels on the street have previously been divided into two parcels with configurations similar to that proposed for the subject parcel. She reiterated the proposed lot sizes, access from Santiago Drive, and a net increase of one residential lot. Jim Mosher remarked regarding the application's consistency with the General Plan. The staff report and proposed resolution do not indicate the General Plan provision that will be amended. Staff indicated the application is consistent with the General Plan policy that prohibits new residential subdivisions, which appears to be a contradiction. He inquired whether a condition of approval prohibiting a gate across the driveway is necessary so that emergency access is available at all times. In reply to Chair Weigand's inquiry, Community Development Director Seimone Jurjis related that a condition of approval requiring an application for development of the property be presented to the Zoning Administrator as a receive and file item can be added. Chair Weigand explained that he wants to provide neighbors with an opportunity for input, to increase vetting of any project, and to provide the Planning Commission with an opportunity to call the project for review. Chair Weigand closed the public hearing. Motion made by Commissioner Kleiman and seconded by Commissioner Ellmore to find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15303 under Class 3 (New Construction) of the CEQA Guidelines, because it has no potential to have a significant effect on the environment; and adopt Resolution No. PC2020-028 approving General Plan Amendment No. GP2020-003 and Tentative Parcel Map No. NP2020-007. Chair Weigand reopened the public hearing. In answer to Chair Weigand's query, Ms. Schaffner commented that staff's review of projects is thorough. If staff determines a future application for a residence meets the City's stringent guidelines, the application should not be presented to the Zoning Administrator as the Zoning Code grants the Zoning Administrator little authority to change the project. She requested a condition of approval not be added. Commissioner Kleiman concurred with Ms. Schaffner's analysis. Chair Weigand closed the public hearing. AYES: Weigand, Lowrey, Kleiman, Ellmore, Klaustermeier, Rosene NOES: ABSTAIN: ABSENT: Koetting [The Planning Commission proceeded to Item 2.] ITEM NO. 4. INDUSTRIAL ZONING (IG) ZONING DISTRICT CODE AMENDMENTS (PA2020-042) Site Location: Northwest corner of the City near Costa Mesa along Production Place, 16tH Street, and portions of Monrovia Avenue Summary: Amendments to Sections 20.70.020 (Definitions of Specialized Terms and Phrases), 20.24.020 (Industrial Zoning District Land Uses and Permit Requirements), 20.40.040 (Off -Street Parking Spaces Required), and 20.48.090 (Eating and Drinking Establishments) of Title 20 (Planning and Zoning) of the Newport Beach Municipal Code. The changes would allow wine tasting rooms subject to obtaining a conditional use permit in the IG Zoning District. Recommended Action: 1. Conduct a public hearing; 2. Find this action proposed herein is not a project subject to the California Environmental Quality Act ("CEQA") in accordance with Section 21065 of the California Public Resources Code and Sections 9of12 16-48 Planning Commission Minutes July 23, 2020 15060 (c)(2), 15060 (c)(3), and 15378 of the California Code of Regulations Title 14, Division 6, Chapter 3 ("CEQA Guidelines"). The proposed action is also exempt pursuant to CEQA Guidelines Section 15061(b)(3), the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment; and 3. Adopt Resolution No. PC2020-029 recommending the City Council approve Zoning Code Amendment No. CA2020-005 to amend Sections 20.24.020 (Industrial Zoning District Land Uses and Permit Requirements), 20.40.040 (Off -Street Parking Spaces Required), 20.48.090 (Eating and Drinking Establishments), and 20.70.020 (Definitions of Specialized Terms and Phrases), of Title 20 (Planning and Zoning) of the Newport Beach Municipal Code. Planning Consultant David Blumenthal explained the licensing process and requirements for a wine tasting room. The proposal is to allow wine tasting rooms in the Industrial Zoning District (IG) and to require a conditional use permit prior to operations commencing. The amendment would prohibit the sale of beer or distilled spirits, allow onsite and offsite consumption of wine, prohibit live entertainment and operations as a restaurant, limit hours of operation to 4 p.m. to 11 p.m. Monday through Friday and noon to 11 p.m. on Saturday and Sunday, and require separation of wine tasting rooms from other wine tasting rooms and schools. Orange Coast Winery, a wine tasting room, has been operating as a nonconforming use since 2010. If the amendment is approved, Orange Coast Winery will need to apply for a conditional use permit. In response to Chair Weigand's inquiries, Planning Consultant Blumenthal advised that one or two properties in the IG Zone could accommodate a wine tasting room with Orange Coast Winery operating at its site. Wine tasting rooms would have to be located 500 feet from Pacifica Christian school. The separation requirement is limited to primary and secondary education sites. Vice Chair Lowrey and Chair Weigand disclosed ex parte communications with the consultant. All other Commissioners disclosed no ex parte communications. Chair Weigand opened the public hearing. Philip Greer, consultant for Orange Coast Winery, advised that the staff report is comprehensive. Jim Mosher remarked that the amendment appears to benefit only one property owner. The separation requirement is measured to the building because part of the parcel would be eliminated if the measurement is to the property. In 2010, food processing uses were approved in the IG Zone. A wine tasting room is not consistent with the General Plan. Chair Weigand closed the public hearing. Commissioner Kleiman recalled a similar application which the Planning Commission approved and the City Council denied. Community Development Director Jurjis clarified that the prior application was for a brewery, a distillery, and a winery. The Council initiated the current application and directed staff to develop a restricted standard to allow a winery. Commissioner Kleiman indicated she considered the application as spot zoning and would not support approval. This is an opportunity for one business to be located in an area where it does not belong. In answer to Chair Weigand's questions, Community Development Director Jurjis explained that the Commission is making a recommendation to the City Council. If the Council denies the amendment, the existing use will have to cease operations or convert its business model to the original model. The business is producing offsite. Commissioner Rosene agreed that the amendment seems to benefit a single entity and to be spot zoning. The IG Zone could benefit from a new and interesting use. There is not much opportunity for other businesses to utilize the amendment. Assistant City Attorney Summerhill clarified spot zoning as a parcel being given less rights than surrounding parcels. While only one or two properties could be a winery, this is not necessarily quintessential spot zoning. The Planning Commission could recommend a smaller separation to allow additional wineries in the area. 10 of 12 16-49 Planning Commission Minutes July 23, 2020 In response to Chair Weigand's queries, Community Development Director Jurjis indicated staff set the 500 -foot distance. The Council directed staff to include a separation requirement but did not specify a distance. Planning Consultant Blumenthal did not know the number of parcels that could accommodate a winery if the separation requirement from the existing business is eliminated. The number could be greater than ten. Chair Weigand could support removing the separation requirement from the existing winery. Commissioner Kleiman shared her understanding of spot zoning. The Council denied the earlier application because it was piecemeal and the proposed use needed a more comprehensive review. Schools and churches are located in the area. In reply to Commissioner Ellmore's inquiry, Planning Consultant Blumenthal explained that the proposed amendment pertains to the IG Zone only, and a wine tasting room is not allowed elsewhere in the City. Motion made by Commissioner Kleiman and seconded by Commissioner Rosene to recommend the Council deny the application. Substitute Motion made by Chair Weigand and seconded by Vice Chair Lowrey to recommend the Council approve the application and remove the 500 -foot separation distance from the existing winery. Vote on the Substitute Motion: AYES: Weigand, Lowrey, Ellmore, Klaustermeier NOES: Kleiman, Rosene ABSTAIN: ABSENT: Koetting VIII. STAFF AND COMMISSIONER ITEMS ITEM NO. 5 MOTION FOR RECONSIDERATION None ITEM NO. 6 REPORT BY THE COMMUNITY DEVELOPMENT DIRECTOR OR REQUEST FOR MATTERS WHICH A PLANNING COMMISSION MEMBER WOULD LIKE PLACED ON A FUTURE AGENDA. Community Development Director Jurjis reported the Council on July 29, 2020 will review and consider Local Coastal Program cleanup amendments, an extension of the Development Agreement with Hoag Hospital, and the Newport Airport Village project. The Airport Land Use Commission found the project inconsistent with the Airport Land Use Plan. The Planning Commission's next meeting will be August 20, 2020. ITEM NO. 7 REQUESTS FOR EXCUSED ABSENCES None X. ADJOURNMENT — 10:32 p.m. 11 of 12 16-50 Attachment F Planning Commission Resolution No. PC2020-29 16-51 DocuSign Envelope ID: 76FOF025-3D5B-452F-80A5-11AC23FBOB63 RESOLUTION NO. PC2020-029 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA, RECOMMENDING THE CITY COUNCIL APPROVE ZONING CODE AMENDMENT NO. CA2020-005, TO AMEND SECTIONS 20.24.020 (INDUSTRIAL ZONING DISTRICT LAND USES AND PERMIT REQUIREMENTS), 20.40.040 (OFF-STREET PARKING SPACES REQUIRED), 20.48.090 (EATING AND DRINKING ESTABLISHMENTS), AND 20.70.020 (DEFINITIONS OF SPECIALIZED TERMS AND PHRASES) OF TITLE 20 (PLANNING AND ZONING) OF THE CITY OF NEWPORT BEACH MUNICIPAL CODE (PA2020-042) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. On April 14, 2020, the City Council of the City of Newport Beach adopted Resolution 2020-38 initiating an amendment to Title 20 (Planning and Zoning) to allow food and alcohol service in the Industrial Zoning District (IG) ("Zoning Code Amendment"). 2. A telephonic public hearing was held by the Planning Commission on July 23, 2020, in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California, due to the Declaration of a State Emergency and Proclamation of Local Emergency related to COVID-19. A notice of time, place, and purpose of the public hearing was given in accordance with Government Code Section 54950 et seq. ("Ralph M. Brown Act") and Chapter 20.62 (Public Hearings) 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. The Zoning Code Amendment is not a project subject to the California Environmental Quality Act in accordance with Section 21065 of the California Public Resources Code ("CEQA") and Sections 15060 (c)(2), 15060 (c)(3), and 15378 of the California Code of Regulations Title 14, Division 6, Chapter 3 ("CEQA Guidelines"). The proposed action is also exempt pursuant to CEQA Guidelines Section 15061(b)(3), the general rule that CEQA applies only to projects, which have the potential for causing a significant effect on the environment. While this amendment would allow a new category of use in an existing zoning district, it does not authorize new development that would directly result in physical change to the environment. 16-52 DocuSign Envelope ID: 76FOF025-3D5B-452F-80A5-11AC23FBOB63 Planning Commission Resolution No. PC2020-029 Paae 2 of 12 SECTION 3. FINDINGS. The Zoning Code Amendment is consistent with the City of Newport Beach General Plan ("General Plan"). According to the General Plan, "[t]he IG designation is intended to provide for a wide range of moderate to low intensity industrial uses, such as light manufacturing and research and development, and limited ancillary commercial and office uses." The Zoning Code Amendment would allow wine tasting rooms with limitations within the Industrial Zoning District (IG), which are accessory to wine production, sales and distribution and is a commercial use that is ancillary to the industrial uses in the vicinity. The wine tasting room would also benefit those who live and work in the area, as it would provide for a location to try wine products before purchasing. 2. The proposed limitations on wine tasting rooms will help ensure that potential nuisances are minimized and that the use would not operate as an eating and drinking establishment or wine bar. 3. The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: The Planning Commission finds the Zoning Code Amendment is not a project subject to CEQA in accordance with Section 21065 of CEQA and CEQA Guideline Sections 15060 (c)(2), 15060 (c)(3), and 15378 of the California Code of Regulations Title 14, Division 6, Chapter 3. The Zoning Code Amendment is also exempt pursuant to CEQA Guidelines Section 15061(b)(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 recommends the City Council approve Zoning Code Amendment No. CA2020-005 as set forth in Exhibit "A," which is attached hereto and incorporated herein by reference. 16-53 DocuSign Envelope ID: 76FOF025-3D5B-452F-80A5-11AC23FBOB63 Planning Commission Resolution No. PC2020-029 Paae 3 of 12 PASSED, APPROVED, AND ADOPTED THIS 23rd DAY OF JULY 2020. AYES: Ellmore, Klaustermeier, Lowrey, and Weigand NOES: Kleiman and Rosene ABSTAIN: None ABSENT: Koetting DocuSigned by: BY: � IR 1FFR-i-'R5.t6j Erik Weigand, Chair DocuSigned by: BY: - Lauren Kleiman, Secretary 16-54 DocuSign Envelope ID: 76FOF025-3D5B-452F-80A5-11AC23FBOB63 Planning Commission Resolution No. PC2020-029 Paae 4 of 12 1 W14:1141 iM_1% ZONING CODE AMENDMENT NO. CA2020-005 Section 1: The row entitled "Eating and Drinking Establishments" of Table 2-12 (Allowed Uses and Permit Requirements) of Section 20.24.020(C) (Allowed Uses and Permit Requirements) of Chapter 20.24 (Industrial Zoning District (IG)) of the Newport Beach Municipal Code (NBMC) is amended to read as follows: Land Use IG Specific Use Regulations Service Uses - General Eating and Drinking Establishments Take -Out Service - Limited P Section 20.48.090 Wine Tasting Room (1) CUP Section 20.48.090 Section 2: Footnote (1) is added to Table 2-12 (Allowed Uses and Permit Requirements) of Section 20.24.020(C) (Allowed Uses and Permit Requirements) of Chapter 20.24 (Industrial Zoning District (IG)) of the NBMC to read as follows: (1) Wine Tasting Room Hours of Operation. The permitted hours of operation shall be limited to Monday through Friday from 4:00 p.m. to 11:00 p.m., and Saturday and Sunday from 12:00 p.m. to 11:00 p.m. Section 3: Section 20.48.090 (Eating and Drinking Establishments) of Chapter 20.48 (Standards for Specific Land Uses) of the NBMC is re -lettered and amended to read as follows: 20.48.090 Eating and Drinking Establishments This section provides standards for the establishment and operation of eating and drinking establishments. A. Standards - All Eating and Drinking Establishments. 1. Outdoor Activities. Activities shall be conducted entirely within an enclosed structure, except for the following, which shall not be located between the activity and the side of a structure adjacent to a residential zoning district. a. The checking of patrons' identification; b. Valet parking activities; 16-55 DocuSign Envelope ID: 76FOF025-3D5B-452F-80A5-11AC23FBOB63 Planning Commission Resolution No. PC2020-029 Paae 5 of 12 c. Outdoor dining when in compliance with the standards in subsection (D) of this section (Standards—Outdoor Dining); d. Outdoor smoking areas in compliance with State law; e. Queuing of patrons, which shall be managed to: i. Allow pedestrian passage on the sidewalk; and ii. Not be adjacent to residential zoning districts and residential uses. 2. Outdoor Storage. Outdoor storage of boxes, equipment, materials, merchandise, and other similar items shall be allowed if the storage area is: a. Screened from public view, subject to the Director's approval; and b. Dedicated for storage only; provided that the dedicated area shall not occupy required parking spaces or open space areas. 3. Solid Waste Storage. The review authority may require storage areas and receptacles that are in addition to the requirements for solid waste storage areas in Section 20.30.120 (Solid Waste and Recyclable Materials Storage). B. Standards - On -Sale Alcohol Sales. 1. Operational Standards. In addition to the standards in subsection (A) of this section, the following standards shall apply to eating and drinking establishments that sell, serve, or give away alcohol: a. Sales Activities. Alcoholic beverages shall not be sold, served, or given away: i. Outside of the exterior walls of the eating and drinking establishment, except for approved outdoor dining areas; ii. From drive -up or walk-up service windows; or iii. To persons in watercraft. b. Litter and Graffiti. The owner/operator shall: i. Maintain the exterior of the premises, including signs and accessory structures, free of litter and graffiti at all times; 16-56 DocuSign Envelope ID: 76FOF025-3D5B-452F-80A5-11AC23FBOB63 Planning Commission Resolution No. PC2020-029 Paae 6 of 12 ii. Provide for daily removal of trash, from the premises and abutting sidewalks or alleys within twenty (20) feet of the premises; and iii. Remove graffiti within forty-eight (48) hours of written notice from the City. c. Security. The review authority may require the eating and drinking establishment to provide security personnel, security programs, and/or surveillance devices. d. Sales Training. i. Owners, operators, servers, vendors, and persons selling, serving, or giving away alcoholic beverages shall complete a Licensee Education on Alcohol and Drugs (LEAD) program sponsored by the Department of Alcoholic Beverage Control. ii. Records of each owner's, operator's, server's, vendor's, and employee's successful completion of the LEAD training program shall be maintained on the premises and shall be presented to a representative of the City upon request. e. Conditions of Approval. The owner/operator shall maintain a copy of the most recent City permit conditions of approval on the premises and shall post a notice that these are available for review on the premises. The posted notice shall be signed by the permittee. f. Public Telephones. Upon request of the Police Chief or as required by the ABC, a public telephone located on the premises or in an adjacent area under the control of the owner/operator shall be equipped with devices or mechanisms that prevent persons from calling in to that public telephone. 2. Development Standards. a. Signs. Signs shall comply with Chapter 20.42 (Sign Standards). In addition, the following shall apply: i. Window signs shall not obstruct the view of the interior of the premises (e.g., sales counter, cash register, employees, customers, etc.) from the exterior. ii. Loitering, open container, and other signs specified by the Alcoholic Beverage Control Act shall be posted as required by the ABC. b. Site and Floor Plans. The site and floor plans of an eating and drinking establishment that sells, serves, or gives away alcohol shall incorporate design features to reduce alcohol-related problems. The review authority may require the 16-57 DocuSign Envelope ID: 76FOF025-3D5B-452F-80A5-11AC23FBOB63 Planning Commission Resolution No. PC2020-029 Paae 7 of 12 incorporation of preventive design features (e.g., openness to surveillance and control of the premises, the perimeter, and surrounding properties; reduction of opportunities for congregating and obstructing public rights-of-way and neighboring property; illumination of interior and exterior areas; and limiting furnishings and features that encourage loitering and nuisance behavior) and other safety features (e.g., security, restrooms, additional exits, etc.). C. Standards - Noise Control Late -Hour Operations. To encourage appropriate patron conduct, the owner/operator of an eating and drinking establishment that sells, serves, or gives away alcohol shall post signs at clearly visible locations within the establishment and at both on-site and off-site parking areas under the owner/operator's control. The signs shall request patrons to keep noise to a minimum. D. Standards - Outdoor Dining (Including Late -hour Operations). 1. Public Property. Outdoor dining on public property shall comply with Chapter 13.18 (Use of Public Sidewalks for Outdoor Dining) and the standards of the Public Works Department. 2. Private Property. Outdoor dining on private property shall comply with the following standards: a. Barriers. Appropriate barriers shall be placed between outdoor dining areas and parking, pedestrian, and vehicular circulation areas. Barriers shall serve only to define the areas and shall not constitute a permanent all-weather enclosure. b. Associated Elements. Physical elements (e.g., awnings, covers, furniture, umbrellas, etc.) that are visible from public rights-of-way shall be compatible with one another and with the overall character and design of the principal structure(s). E. Standards - Bars, Nightclubs, and Lounges. Bars, nightclubs, and lounges shall comply with the standards in subsections (A) through (D) of this section. In addition, the structure in which the bar, nightclub, or lounge is located shall be adequately soundproofed so that interior noise is not audible beyond the lot line with the doors and windows closed. F. Standards - Wine Tasting Rooms. In addition to the standards set forth in subsections (A) through (D), wine tasting rooms shall comply with the following standards: 1. The building in which the wine tasting room is located shall be a minimum of 500 feet from the property line of any property that contains a preschool, elementary, middle, or high school. 16-58 DocuSign Envelope ID: 76FOF025-3D5B-452F-80A5-11AC23FBOB63 Planning Commission Resolution No. PC2020-029 Paae 8 of 12 2. The wine tasting room shall operate under an ABC Type 2 (Winegrower) license only. 3. The wine tasting room shall not operate as a bona fide eating establishment, but may serve incidental foods such as bread, crackers, cheeses or nuts. Any kitchen or food preparation area provided shall have no cooking equipment that requires a mechanical ventilation system to exhaust heat, steam or grease vapor. 4. Limited private events may occur within the wine tasting room, provided the wine tasting room remains open to the public. 5. Live entertainment is prohibited. G. Permit Requirements. 1. New Establishments. Permits and licenses required by Title 5 (Business Licenses and Regulations) shall be obtained for new eating and drinking establishments, in addition to permits required by Part 2 of this title (Zoning Districts, Allowable Land Uses, and Zoning District Standards). 2. Existing Establishments. An existing eating and drinking establishment, including bars, lounges, and nightclubs, shall obtain permits and licenses required by Title 5 (Business Licenses and Regulations) in the following circumstances: a. Substantial Change. When there is a substantial change in operation including any of the following: i. An application for, or a change in type of, retail liquor license from the Department of Alcoholic Beverage Control; ii. An increase in the floor area principally devoted to alcohol sales by twenty- five (25) percent or more or by two hundred fifty (250) square feet or more, whichever is less; or iii. A reinstatement of alcohol sales after the ABC has revoked or suspended the existing ABC license for a period of longer than thirty (30) days. b. Objectionable Conditions. When the establishment is operated or maintained under objectionable conditions that constitute a public nuisance, including any of the following: i. A pattern of documented violations of the permit conditions, this Zoning Code, the Municipal Code, the Penal Code, or other State statutes; or 16-59 DocuSign Envelope ID: 76FOF025-3D5B-452F-80A5-11AC23FBOB63 Planning Commission Resolution No. PC2020-029 Paae 9 of 12 ii. A pattern of substantiated complaints of activity constituting evidence of a nuisance. 3. Review Criteria. a. Late -Hour Operations. When reviewing an application to allow late -hour operations, the review authority shall consider the following potential impacts upon adjacent or nearby uses: i. Noise from music, dancing, and voices associated with allowed indoor or outdoor uses and activities; ii. High levels of lighting and illumination; iii. Increased pedestrian and vehicular traffic activity during late night and early morning hours; iv. Increased trash and recycling collection activities; v. Occupancy loads of the use; and vi. Any other factors that may affect adjacent or nearby uses. b. Outdoor Dining. When reviewing an application to allow outdoor dining, the review authority shall consider the relation of outdoor dining areas to sensitive noise receptors (e.g., hospitals, schools, and residential uses). Mitigation measures shall be applied to eliminate potential impacts related to glare, light, loitering, and noise. c. On -Sale Alcohol Sales. When reviewing an application to allow an eating or drinking establishment to sell, serve, or give away alcohol, the review authority shall: i. Evaluate the potential impacts upon adjacent uses outlined in subsection (F)(3)(a) of this section (Late -Hour Operations). For the purposes of this subsection, "adjacent uses" shall mean those uses within one hundred (100) feet of the proposed use, as measured between the nearest lot lines; ii. Consider the proximity to other establishments selling alcoholic beverages for either off-site or on-site consumption; and iii. Make the findings in Section 20.48.030(C)(3) (alcohol sales—off-sale). 4. Post -Decision Procedures. 16-60 DocuSign Envelope ID: 76FOF025-3D5B-452F-80A5-11AC23FBOB63 Planning Commission Resolution No. PC2020-029 Paae 10 of 12 a. With On -Sale Alcohol Sales. For establishments with permits for on -sale alcohol sales, the post -decision procedures in Section 20.48.030(C)(4) shall apply. b. Without On -Sale Alcohol Sales. For establishments that do not sell, serve, or give away alcohol, the procedures and requirements in Chapter 20.54 (Permit Implementation, Time Limits, and Extensions), and those related to appeals in Part 6 of this title (Zoning Code Administration) shall apply. Section 4: Table 3-10 (Off -Street Parking Requirements) in Section 20.40.040 (Off - Street Parking Spaces Required) is amended to add a row to include parking standards for Wine Tasting Rooms to read as follows: Land Use Parking Spaces Required Service Uses—General Eating and Drinking Establishments Wine Tasting Room 1 per each 4 persons based on allowed occupancy load or as required by conditional use permit Section 5: The definition for "Eating and Drinking Establishments (Land Use)" within Section 20.70.020 (Definitions of Specialized Terms and Phrases) of Chapter 20.70 (Definitions) shall be amended to include the definition of "Wine Tasting Room" to read as follows: Eating and Drinking Establishments (Land Use). See also "Alcohol sales, on -sale" and "Drive-through facilities." 1. "Accessory food service" means a type of food service establishment that: a. Sells food and/or beverages as an accessory use in a retail, office, or institutional structure; b. Does not change the character of the principal use; c. Does not sell, serve, or give away alcoholic beverages; d. Does not have an entrance separate from the principal use; and e. Has hours of operation that are the same as those of the principal use. 2. "Bar, lounge, and nightclub" means an establishment that sells or serves alcoholic beverages for consumption on the premises and is holding or applying for a public premises license from the California State Department of Alcoholic Beverage Control (ABC) (i.e., ABC License Type 42 (On -Sale Beer and Wine—Public Premises), ABC 16-61 DocuSign Envelope ID: 76FOF025-3D5B-452F-80A5-11AC23FBOB63 Planning Commission Resolution No. PC2020-029 Paae 11 of 12 License Type 48 (On -Sale General—Public Premises), and ABC License Type 61 (On - Sale Beer—Public Premises)). Persons under twenty-one (21) years of age are not allowed to enter and remain on the premises. The establishment shall include any immediately adjacent area that is owned, leased, rented, or controlled by the licensee. 3. "Fast food" means an establishment whose design or principal method of operation includes four or more of the following characteristics: a. A permanent menu board is provided from which to select and order food; b. A chain or franchise restaurant; c. Customers pay for food before consuming it; d. A self-service condiment bar and/or drink service is/are provided; e. Trash receptacles are provided for self-service bussing; and f. Furnishing plan indicates stationary seating arrangements. A fast food establishment may or may not have late hour operations (see "Late hour operations"). Alcoholic beverages are not sold, served, or given away on the premises. If alcoholic beverages are sold, served, or given away on the premises, the use shall be considered a food service use. See "Food service." 4. "Food service, no late hours" means an establishment that sells food and beverages, including alcoholic beverages, prepared for primarily on-site consumption, and that has all of the following characteristics: a. Establishment does not have late hour operations (see "Late hour operations"); b. Customers order food and beverages from individual menus; c. Food and beverages are served to the customer at a fixed location (i.e., booth, counter, or table); and d. Customers pay for food and beverages after service and/or consumption. 5. "Food service, late hours" means an establishment that sells food and beverages, including alcoholic beverages, prepared for primarily on-site consumption, and that has all of the following characteristics: a. Establishment does have late hour operations (see "Late hour operations"); b. Customers order food and beverages from individual menus; c. Food and beverages are served to the customer at a fixed location (i.e., booth, counter, or table); and d. Customers pay for food and beverages after service and/or consumption. 6. "Late hour operations" means facilities that provide service after 11:00 p.m. 16-62 DocuSign Envelope ID: 76FOF025-3D5B-452F-80A5-11AC23FBOB63 Planning Commission Resolution No. PC2020-029 Paae 12 of 12 7. "Outdoor dining, accessory" means an outdoor dining area contiguous and accessory to a food service establishment. 8. "Take-out service, limited" means an establishment that sells food or beverages and that has all of the following characteristics: a. Sales are primarily for off-site consumption; b. Customers order and pay for food at either a counter or service window; c. Incidental seating up to six seats may be provided for on-site consumption of food or beverages; and d. Alcoholic beverages are not sold, served, or given away on the premises. Typical uses include bakeries, candy, coffee, nut and confectionery stores, ice cream and frozen dessert stores, small delicatessens, and similar establishments. 9. "Take-out service only" means an establishment that offers a limited variety of food or beverages and that has all of following characteristics: a. Sales are for off-site consumption; b. Seating is not provided for on-site consumption of food or beverages; and c. Alcoholic beverages are not sold, served, or given away on the premises. 10. "Wine Tasting Room" means an establishment that operates pursuant to an ABC Type 2 (Winegrower) license to provide the sale of wine that is produced by said winery for on- and off-site consumption. The sale of other types of alcohol, such as beer and distilled spirits, shall be expressly prohibited. 16-63