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HomeMy WebLinkAbout20190620_Resolution_PC2019-020Community Development Department CITY OF NEWPORT BEACH 100 Civic Center Drive Newport Beach, California 92660 949 644-3200 newportbeachca.gov/communitydevelopment VIA EMAIL July 9, 2019 Edward O’Neill Willy- Nilly Inc. 3112 Newport Boulevard ed@hosumbistro.com Subject: Conditional Use Permit No. UP2019-002 (PA2019-001) 3112 Newport Boulevard Ho Sum Bistro Use Permit Dear Mr. O’Neill, It was a pleasure working with you on the above referenced application. Please be advised that the subject application was approved by the Planning Commission on June 20, 2019 and effective on July 5, 2019. A copy of the approved resolution with findings and conditions is attached. If you have any questions, please do not hesitate to contact me directly. Thank you and I look forward to working with you again in the future. Sincerely, Liz Westmoreland, Assistant Planner JMlaw RESOLUTION NO. PC2019-020 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA APPROVING CONDITIONAL USE PERMIT NO. UP2019-002 FOR A FOOD SERVICE, EATING AND DRINKING ESTABLISHMENT WITH A TYPE 47 ALCOHOLIC BEVERAGE CONTROL (ABC) LICENSE LOCATED AT 3112 NEWPORT BOULEVARD (PA2019-001) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Willie-Nilly Inc. ("Applicant") with respect to property located at 3112 Newport Boulevard, and legally described as Lot 2, Block 431, of the Lancasters Addition Tract ("Property") requesting approval of a conditional use permit. 2. The Applicant requests a conditional use permit to change the existing fast food (take-out service), eating and drinking establishment to a new food service, eating and drinking establishment. In conjunction with this change, the Applicant requests to upgrade the current ABC License Type from a Type 41 (On-Sale Beer & Wine -Eating Place) to a Type 47 (On-Sale General-Eating Place), allow use of the upstairs dining area throughout the day, and reduce the hours of operation to exclude late hours (i.e. no operations after 11 :00 p.m.) ("Project"). The Applicant also requests a continuation of historical parking reductions. 3. The Property is designated CV (Visitor Serving Commercial) by the General Plan Land Use Element and is located within the CV (Commercial Visitor-Serving) Zoning District. 4. The Property is located within the coastal zone. The Coastal Land Use Plan category is Visitor Serving Commercial (CV-A)-(0.0-0.75 FAR) and is located within the Commercial Visitor-Serving (CV) Coastal Zone District. 5. . A coastal development permit is not required because there is no physical expansion or intensification of use. The change in the ABC license type to allow liquor sales is ancillary to the existing restaurant operations. No changes or expansion to the existing upstairs dining area are proposed. The change in use from a take-out restaurant to food service, eating and drinking establishment results in a lower parking demand than current requirements. Lastly, the permitted hours of operation of the establishment would be reduced. 6. A public hearing was held on June 2oth, 2019, in the Council Chambers at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the hearing was given in accordance with the Ralph M. Brown Act and Newport Beach Municipal Code ("NBMC"). Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this hearing. Planning Commission Resolution No. PC2019-020 Page 2 of 15 SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This project is exempt from the California Environmental Quality Act ("CEQA") pursuant to Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. 2. The Class 1 exemption includes the ongoing use of existing buildings where there is negligible or no expansion of use. The proposed Project involves the continued operation of an existing restaurant use and no construction is proposed. The Project includes a modified ABC License and use of the upstairs dining area throughout the day and evening hours. SECTION 3. REQUIRED FINDINGS. Conditional Use Permit Findings In accordance with NBMC Section 20.52.020 (Conditional Use Permits and Minor Use Permits), the following findings and facts in support of such findings are set forth: Finding: A. The use is consistent with the General Plan and any applicable specific plan; Facts in Support of Finding: 1. The General Plan designates the Property as Visitor Serving Commercial (CV), which is intended to provide for services to primarily serve visitors to the City of Newport Beach. The continued operation of the existing restaurant will serve visitors and residents of the area. Expanding the existing upstairs dining area to accommodate more visitors in the daytime will reduce wait times and provide additional dining opportunities to visitors. 2. The existing restaurant is located within the established commercial area along Newport Boulevard, which provides goods and services to visitors and residents alike, consistent with the CV land use designation. 3. The Property is not a part of a specific plan area. Finding: B. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code; 01-25-19 Planning Commission Resolution No. PC2019-020 · Page 3 of 15 Facts in Support of Finding: 1. The Property is located in Commercial Visitor-Serving (CV) Zoning District which is intended to provide for areas appropriate for accommodations, goods, and services intended to serve primarily visitors to the City. Eating and drinking establishments (including alcohol) are allowed uses, subject to the approval of a use permit. 2. The Property has accommodated various types of eating and drinking establishments for over 50 years. A coffee shop with a beer and wine license was approved in 1959, prior to the requirement for off-street parking and a use permit. In 1984, Use Permit No. UP3110 was approved to modify operations of the existing take-out restaurant, reconfigure the rear parking lot, and formally waive 21 parking spaces consistent with the nonconforming parking conditions from the 1960s. 3. In 1985, UP3110 was amended to authorize the construction of a second floor office and storage area. This amended use permit waived the additional parking required for the addition, resulting in a cumulative parking waiver of 29 parking spaces. In 1991, UP3110 was amended a second time to allow conversion of the upstairs office and storage area into a seating area for use after 6:00 p.m. daily, when the parking demands are lower on the peninsula. A maximum of three tables and 12 chairs were permitted within the upstairs dining area. 4. The property is nonconforming due to having only five spaces available on-site, where 34 spaces were previously required as a take-out restaurant. The existing establishment is required to park at a rate of one space per 50 square feet of gross floor area (1,518 square feet) plus one space per employee (three employees), for a total of 34 spaces. Five spaces were provided on-site and 29 spaces were waived in conjunction with the 1985 and 1991 amendments to UP3110. 5. Under current parking requirements for a food service, eating and drinking establishment, parking is required at a rate of one parking space per 30 to 50 square feet (sf) of net public area (NPA), as determined by a use permit. In this case, a parking rate of one space per 40 sf of NPA is appropriate for the proposed use based on several physical design and operational characteristics. For example, there are only three tables included on the first floor and three tables on the second floor, with the remaining six seats located at the existing counter. Further, the net public area includes a waiting area, which does not allow for seating and dining. The Project does not include any outdoor dining and is conditioned to prohibit live entertainment and dancing. Hours of operation are limited to lunch and dinner, with no early or late hours. Lastly, the restaurant would not be considered a destination use, resulting in a lower parking demand. Most restaurant patrons in this area are already visiting McFadden Square, the beach, and other nearby amenities and will be walking to the restaurant. Local residents in the area will also likely be walking to the restaurant. 6. With an NPA of 501 square feet and a parking rate of one space per 40 square feet of NPA, 13 parking spaces are required to serve the restaurant under current standards. 01-25-19 Planning Commission Resolution No. PC2019-020 Page 4 of 15 With the five parking spaces provided on-site, the resulting deficiency in parking is reduced from 29 spaces to eight spaces. Therefore, no additional parking is required. 7. The Public Works Department has reviewed the existing design and configuration of parking spaces and has no objections to maintaining the existing nonconforming width of the parking spaces (8 feet 4 inches is provided, whereas 8 feet 6 inches is required). A condition of approval is included to maintain the existing clear dimensions of the parking spaces on-site. Any future changes to the parking lot configuration would require review and approval by the Planning and Building Divisions, as well as the Public Works Department. Finding: C. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity; Facts in Support of Finding: 1. The upgraded ABC License Type in conjunction with an established eating and drinking place does not significantly change the operating characteristics of the existing restaurant which has been operating since the 1960s and a coffee shop in the 1950s. The Property has been accommodating an eating and/or drinking establishment with beer and wine service since 1959. There have been no historical compatibility issues. 2. The Project is conditioned to prohibit the restaurant from operating as a bar, tavern, or nightclub, thereby reducing potential impacts to the neighborhood. The reduced hours of operations proposed by the Applicant would further reduce the possibility of the restaurant impacting surrounding neighborhoods. The proposed hours of operation are 11 :00 am to 10:00 pm Sunday through Thursday, and 11 :00 am to 11 :00 pm on Friday and Saturday and no late hours are requested. Additionally, conditions are included to prohibit amplified sound except background music (i.e. not audible from outside the restaurant) and no live entertainment or dancing is allowed on the premises. Lastly, food service from the regular menu shall be made available to patrons until closing. 3. The restaurant is small, with only 501 square feet of net public area. There is 299 square feet of NPA on the ground floor and 202 square feet of NPA on the second floor. There are approximately 33 seats in the restaurant. The small size of the restaurant would reduce the likelihood of any potential impacts to the surrounding area. 4. The existing restaurant (with an upgraded license type and use of the upstairs dining area during daytime hours) will be complementary to the other uses in the area. The area includes retail uses, the Lido House Hotel, the Landing shopping center, mixed- use buildings, eating and drinking establishments, and residential uses across Newport Boulevard. The restaurant will contribute to making the area a viable commercial node for the visitors and residents. 01-25-19 Planning Commission Resolution No. PC2019-020 Page 5 of 15 5. The project has been conditioned to provide a trash enclosure outside of the clear parking dimensions and accessible path of travel for the accessible parking space. The trash enclosure will screen trash from the alley and improve water quality by covering the top of the dumpster and/or trash bins. If a full trash enclosure is not feasible based on the available space in the rear parking lot, then the Community Development Director can administratively modify the screening requirements pursuant to NBMC Section 20.30.120.8.2 to achieve a design that meets the intent of the code to the maximum extent feasible. 6. The existing accessible space is not directly and independently accessible from the alley, reducing the functionality of this space. Therefore, a condition of approval has been included to move this space to the rear of the property. If this modification results in a loss of any parking spaces, the Community Development Director may administratively waive the space(s) pursuant to NBMC Section 20.40.11 O.A. Finding: D. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities. Facts in Support of Finding: 1. The existing restaurant has proven to be physically suitable in terms of design, location, shape, and size to support the use. The physical characteristics of the Property are not changing with the addition of liquor service and use of the existing upstairs dining area during the day. The Property has accommodated similar uses since the 1960s and has proven to be physically suitable for the Project. 2. Four of the five parking spaces at the rear of the property are required to be maintained free and clear for the parking of employees only. The existing tandem spaces are acceptable if used by employees of the business, who are able coordinate and move vehicles as needed. Employees typically arrive prior to and post business hours, and remain on-site for most of the day or for long periods of time during shifts. The one existing accessible space shall be utilized for customers or employees as needed, subject to State and Federal Laws. The required trash enclosure has been conditioned to be located outside of the required parking dimensions and path of travel for the one accessible space. 3. Adequate public and emergency vehicle access, public services, and utilities are provided for on-site. The continued use of the restaurant with a Type 47 ABC License and full use of the upstairs dining area would not impact public services or utilities. The Police Department has reviewed the proposed ABC License type change and is comfortable with it based on the hours of operation and operational characteristics. The Public Works Department and Life Safety Services (Fire) Division have reviewed the application and have no concerns regarding the operation. 01-25-19 Finding: Planning Commission Resolution No. PC2019-020 Page 6 of 15 E. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Facts in Support of Finding: 1. The project has been reviewed and includes conditions of approval to ensure that potential conflicts with the surrounding land uses are minimized to the greatest extent possible. Alcohol service is already authorized at the restaurant, only the addition of liquor is new. No alcohol-related calls for service have been reported for the business in 2017 (the most recent data set). Additionally, the operator is required to take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks and areas surrounding the subject property and adjacent properties during business hours, if directly related to the patrons of the establishment. 2. The restaurant will service the neighborhood by providing dining services as a public convenience to visitors as well as residents to the surrounding area, which is the intent of the CV land use designation. The service of alcohol will complement the principal use of the facility and provide an economic opportunity for the property owner to maintain a successful business in a way which best serves the community and visitors. The restaurant will close by 11 :00 p.m. and conditions of approval are included to ensure that the business does not operate as a bar, lounge, or nightclub. 3. As conditioned, the owners, managers and employees selling alcohol are required to undergo and successfully complete a certified training program in responsible methods and skills for selling alcohol. Off-Street Parking Reduction Based on current parking requirements, the Property's parking deficit is reduced from 29 spaces to eight spaces. In accordance with NBMC Section 20.40.110 (Adjustments to Off- Street Parking Requirements), off-street parking requirements may be reduced with the approval of a conditional use permit in compliance with Section 20.52.020 (Conditional Use Permits and Minor Use Permits) as follows: F. The applicant has provided sufficient data, including a parking study if required by the Director, to indicate that parking demand will be less than the required number of spaces or that other parking is available (e.g., City parking lot located nearby, on-street parking available, greater than normal walk in trade, mixed-use development); and 1. Historically, parking rates were based on the gross floor area of the restaurant as a take- out use, resulting in a total need of 34 spaces. However, the current Zoning Code requires a parking rate of one parking space per 30 to 50 square feet of net public area as a food service use. The existing establishment contains 501 square feet of net public 01-25-19 Planning Commission Resolution No. PC2019-020 Page 7 of 15 area. Therefore, using a moderate rate of one space per 40 square feet of NPA, 13 parking spaces are required by today's standards. The Property provides five parking spaces on-site, resulting in a deficiency of eight spaces. Because the previous parking reductions were for 29 parking spaces, the overall parking demand is reduced by 21 spaces due to changes in the Zoning Code and no additional parking is required. 2. The continuation of historical parking reductions remains appropriate for the restaurant, even with the use of the upstairs dining area during the daytime because the overall seating count has been reduced from the previously approved plan. In addition, in keeping with historical conditions, walk-up traffic is common in this area of the peninsula. Visitors to this area are typically going to the beach or bay and have multiple destinations on the peninsula, such as recreation, shopping, and dining. The restaurant is small, and would not serve as a destination use that would generate a high demand for parking. On-street parking is available throughout this area and has proven to be sufficient to support the existing restaurant and nearby businesses. Additionally, the Lido House Hotel is located across 32nd Street, and the restaurant would serve as a nearby amenity for travelers. 3. Further, the upstairs dining area contains only 202 square feet of NPA and accommodates only 12 seats. Thus, parking impacts related to the use of the upstairs dining area during the daytime (prior to 6:00 p.m.) would be negligible. The overall parking demand for the restaurant is approximately 40 percent of the demand cited in the existing use permits as a take-out restaurant. Alcohol Sales Finding In accordance with NBMC Section 20.48.030 (Alcohol Sales), a change in type of ABC license requires the following finding in addition to the conditional use permit findings. The facts in support of such finding is set forth: Finding: G. The use is consistent with the purpose and intent of NBMC Section 20.48.030 (Alcohol Sales) of the Zoning Code. Facts in Support of Finding: In finding that the proposed use is consistent with NBMC Section 20.48.030 of the Zoning Code, the following criteria must be considered: i. The crime rate in the reporting district and adjacent reporting districts as compared to other areas in the City. 1. The Property is located in Reporting District (RD) 15, which stretches from 37th Street to 20th Street along the Newport Beach peninsula. The Police Department is required to report offenses of Part One Crimes combined with all arrests for other crimes, both felonies and misdemeanors (except traffic citations) to ABC. Part One Crimes are the 01-25-19 Planning Commission Resolution No. PC2019-020 Page 8 of 15 eight most serious crimes defined by the FBI Uniform Crime Report: criminal homicide, rape, robbery, aggravated assault, burglary, larceny-theft, auto theft, and arson. RD 15 is considered a high crime area as compared to other reporting districts in the City. The RD 15 crime count is 670, which ranks first in the City at 401 percent over the citywide crime count average of 134. Therefore, the area is found to have undue concentration. In comparison, neighboring RD 13 is 64 percent above the citywide average, RD 16 is 42 percent higher, and RD 25 is 73 percent higher. The highest volume crime is assault, and the highest volume arrest is public intoxication or drug-related offenses. 2. The Police Department has reviewed the proposal, provided operating conditions of approval, and has no objection to the change in ABC license for the existing restaurant. Alcohol is not new to this establishment, but the addition of liquor is a new privilege. The active use permit allows the business to operate until as late as Monday through Thursday and 1 :00 a.m. on Friday and Sunday. The proposed use permit amendment would reduce operating hours to no later than 11 :00 p.m. The Applicant has offered to reduce the hours of operation in the use permit to reflect the true operating characteristics of the restaurant. In addition to reducing hours of operation, the proposed use permit amendment would allow the conditions of approval to be updated to reflect modern requirements and align with ABC License standards. ii. The numbers of alcohol-related calls for service, crimes, or arrests in the reporting district and in adjacent reporting districts. 1. The total number of alcohol-related calls for service, crimes, or arrests in RD 15 is higher than neighboring reporting districts. DUI, public intoxication, and liquor law violations make up 39 percent of arrests in RD 15. In comparison, the figures for neighboring RD 13 is 33 percent, RD 16 is 24 percent, and RD 25 is 29 percent. RD 15 is expected to be higher than adjacent reporting districts based on the number of commercial businesses such as restaurants and bars, and high volume of visitors to the area. The hours of operation will be reduced to no longer include operations after 11 :00 p.m. and the Police Department has no objection to this application. 2. According to the latest data set from 2017 (2018 statistics not available yet), there were six dispatch events for the subject address, with only three of those events related to the business. The three calls were not related to alcohol. iii. The proximity of the establishment to residential zoning districts, day care centers, hospitals, park and recreation facilities, places of worship, schools, other similar uses, and any uses that attract minors. 1. The existing restaurant is located on Newport Boulevard near 32nd Street, which is consistent with the General Plan designation, Visitor Serving Commercial (CV). The area includes retail uses, the Lido House Hotel, The Landing shopping center, mixed- use buildings, eating and drinking establishments, and residential uses located across Newport Boulevard. The Property is not located in close proximity to any daycare centers, hospitals, places of worship, schools, or similar uses that attract minors. However, the restaurant is located approximately 1,200 feet from the beach and the 01-25-19 Planning Commission Resolution No. PC2019-020 Page 9 of 15 area attracts a large number of visitors including minors. The nature of the commercial area along Newport Boulevard is to provide goods and services, including eating and drinking establishments, designed to support travelers going to the beach and associated amenities. The nearest residential uses are located along Marcus Avenue and are approximately 290 feet from the existing restaurant. The Property has supported an eating and/or drinking operation with a beer and wine license since 1959 and is considered an established use in the area. Eating and drinking establishments with incidental alcohol service are common in the commercial area on the peninsula and the proposed Alcoholic Beverage Control license type is not anticipated to alter the operational characteristics of the commercial center such that it becomes detrimental to the area. The project does not include any late hours that could potentially impact residential areas. iv. The proximity to other establishments selling alcoholic beverages for either off-site or on- site consumption. 1. There are multiple restaurants in the vicinity that are authorized for the sale of alcoholic beverages, including Ocean Restaurant (formerly Rudy's), Malarkey's, Mama D's, among others. The subject restaurant currently serves beer and wine, without any issues. The addition of liquor service at the restaurant is acceptable to the Police Department, as late hours would no longer be permitted on-site. Reducing the number of businesses serving alcohol after 11 :00 p.m. is acknowledged as a benefit to the community. The closest establishment approved for off-site consumption is Pavilions, which is located across Newport Boulevard. Expanding the ABC license to allow for full liquor service at the subject restaurant would not impact operations at the grocery store. There is no evidence suggesting this use has been detrimental to surrounding properties or the neighborhood. v. Whether or not the proposed amendment will resolve any current objectionable conditions. 1. The project has been reviewed and conditioned to ensure that the purpose and intent of Section 20.48.030 (Alcohol Sales) of the Zoning Code is maintained and that a healthy environment for residents and businesses is preserved. The service of alcohol is intended for the convenience of customers dining at the establishment. Operational conditions of approval recommended by the Police Department relative to the sale of alcoholic beverages will ensure compatibility with the surrounding uses and minimize alcohol-related impacts. 2. The proposed hours of operation of the establishment will minimize the potential effects of the upgraded ABC License type. The establishment will close by 11 :00 p.m., daily, which will ensure the use does not become a late night bar, tavern, or nightclub. 3. The establishment is located within an existing commercial and mixed-use area which is developed with other commercial uses including restaurants. The upgrade in ABC license in conjunction with an existing restaurant will not alter the existing conditions, but will complement the proposed food service and provide a convenience to customers. 01-25-19 SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: Planning Commission Resolution No. PC2019-020 Page 10 of 15 1. The Planning Commission of the City of Newport Beach hereby approves UP2019-002, subject to the conditions set forth in Exhibit "A," which is attached hereto and incorporated by reference. 2. This action shall becom~ final and effective 14 days following the date this Resolution was adopted unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. 3. This resolution supersedes all existing use permits, which upon vesting of the rights authorized by this use permit (UP2019-002) shall become null and void. PASSED, APPROVED, AND ADOPTED THIS 20th DAY OF JUNE, 2019. AYES: Ellmore, Kleiman, Koetting, Kramer, Lowrey, Weigand, Zak NOES: ABSTAIN: 01-25-19 PLANNING DIVISION Planning Commission Resolution No. PC2019-020 Page 11 of 15 EXHIBIT "A" CONDITIONS OF APPROVAL (Project-specific conditions are in italics) 1. The development shall be in substantial conformance with the approved Property plan and floor plans dated with the date of this approval, except as modified by applicable conditions of approval. 2. The Project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 3. The maximum net public area of the indoor dining area shall be limited to 501 square feet. 4. A maximum of three tables and 12 chairs are permitted within the upstairs dining area. 5. The Applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this Use Permit. 6. Hours of operation shall be between 11:00 am to 10:00 pm Sunday through Thursday, and 11:00 am to 11:00 pm on Friday and Saturday. No late hours (after 11:00 p.m.) are permitted. 7. The Applicant shall provide a revised striping plan to relocate the existing accessible space on-site to be directly and independently accessible from the alley. If necessary, the other parking spaces may be reduced in width to accommodate the relocated accessible stall and associated features (e.g. path of travel, loading area). The final striping plan shall be approved by the Community Development Department (COD) Director and Public Works Department. The COD Director shall have the authority to waive this requirement. 8. Any new or replacement signs shall be in conformance with the approved Comprehensive Sign Program for the Project (if applicable) and provisions of NBMC Chapter 20.42 (Signs). 9. This Use Permit may be modified or revoked by the Planning Commission should they determine that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 01-25-19 Planning Commission Resolution No. PC2019-020 Page 12 of 15 10. Any change in operational characteristics, expansion in net public area, or other modification to the approved plans, shall require an amendment to this Use Permit or the processing of a new Use Permit. 11. A copy of the Resolution, including conditions of approval Exhibit "A" shall be incorporated into the Building Division and field sets of plans prior to issuance of building permits. 12. The Property shall not be excessively illuminated based on the luminance recommendations of the Illuminating Engineering Society of North America, or, if in the opinion of the Director of Community Development, the illumination creates an unacceptable negative impact on surrounding land uses or environmental resources. The Director may order the dimming of light sources or other remediation upon finding that the Property is excessively illuminated. 13. All noise generated by the proposed use shall comply with the provisions of NBMC Chapter 10.26 and other applicable noise control requirements of the NBMC. The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher: Between the hours of 7:00 a.m. Between the hours of 10:00 p.m. and 10:00 p.m. and 7:00 a.m. Location Interior Exterior Interior Exterior Residential Property 45dBA 55dBA 40dBA 50dBA Residential Property located within 45dBA 60dBA 45dBA 50dBA 100 feet of a commercial property Mixed Use Property 45dBA 60dBA 45dBA 50dBA Commercial Property N/A 65dBA N/A 60dBA 14. Should the property be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing agent. 15. Unless otherwise approved by the Community Development Director, all trash shall be stored within the building or within dumpsters stored in the trash enclosure (three walls and a self-latching gate) or otherwise screened from view of neighboring properties, except when placed for pick-up by refuse collection agencies. The trash enclosure shall have a decorative solid roof for aesthetic and screening purposes. 16. Trash receptacles for patrons shall be conveniently located both inside and outside of the establishment, however, not located on or within any public property or right-of-way. 17. The exterior of the business shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. 18. The Applicant shall ensure that the trash dumpsters and/or receptacles are maintained to control odors. This may include the provision of either fully self-contained dumpsters 01-25-19 Planning Commission Resolution No. PC2019-020 Page 13 of 15 or periodic steam cleaning of the dumpsters, if deemed necessary by the Planning Division. Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14, including all future amendments (including Water Quality related requirements). 19. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10:00 p.m. and 7:00 a.m. on weekdays and Saturdays and between the hours of 10:00 p.m. and 9:00 a.m. on Sundays and Federal holidays, unless otherwise approved by the Director of Community Development, and may require an amendment to this Use Permit. 20. Storage outside of the building in the front or at the rear of the property shall be prohibited, with the exception of the required trash container enclosure. 21. A Special Events Permit is required for any event or promotional activity outside the normal operational characteristics of the approved use, as conditioned, or that would attract large crowds, involve the sale of alcoholic beverages, include any form of on-site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. 22. UP2019-002 shall expire and become void unless exercised within 24 months from the actual date of review authority approval, except where an extension of time is approved in compliance with the provisions of Title 20 Planning and Zoning of the Newport Beach Municipal Code. 23. To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of Ho Sum Bistro Conditional Use Permit including, but not limited to, UP2019- 002 (PA2019-001 ). This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by Applicant, City, and/or the parties initiating or bringing such proceeding. The Applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The Applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. 01-25-19 PUBLIC WORKS DEPARTMENT Planning Commission Resolution No. PC2019-020 Page 14 of 15 24. The trash enclosure/dumpster shall be located outside of the required parking dimensions. If the trash enclosure cannot be physically accommodated based on Public Works and Building Division requirements, the Community Development Director may waive this requirement. POLICE DEPARTMENT 25. The Applicant shall comply with all federal, state, and local laws, and all conditions of the Alcohol Beverage License. Material violation of any of those Jaws or conditions in connection with the use is a violation and may be cause for revocation of the use permit. 26. All owners, managers, and employees selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for selling alcoholic beverages within 60 days of hire. This training must be updated every three years regardless of certificate of expiration date. The certified program must meet the standards of the certifying/licensing body designated by the State of California. The establishment shall comply with the requirements of this section within 60 days of approval. Records of each owner's, manager's, and employee's successful completion of the required certified training program shall be maintained on the premises and shall be presented upon request by a representative of the City of Newport Beach. 27. The eating and drinking establishment shall close no later than 11:00 p.m., daily. 28. Approval does not permit the premises to operate as a bar, tavern, cocktail lounge, or nightclub as defined by the NBMC. 29. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The licensee shall at all times maintain records, which reflect separately the gross sales of food and the gross sales of alcoholic beverages of the licensed business. These records shall be kept no less frequently than on a quarterly basis and shall be made available to the Police Department on demand. 30. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee. 31 . There shall be no live entertainment or dancing allowed on the premises. 32. No games or contests requiring or involving the consumption of alcoholic beverages shall be allowed. 33. There shall be no reduced price alcoholic beverage promotions after 9:00 p.m. 34. Food service from the regular menu shall be made available to patrons until closing. 01-25-19 Planning Commission Resolution No. PC2019-020 Page 15 of 15 35. Petitioner shall not share any profits or pay any percentage or commission to a promoter or any other person based upon monies collected as a door charge, cover charge, or any other form of admission charge, including minimum drink orders or the sale of drinks. 36. Any event or activity staged by an outside promotor or entity, where the Applicant, operator, owner, or his/her employees or representatives share in any profits, or pay any percentage or commission to a promoter or any other person based upon money collected as a door charge, cover charge, or any other form of admission charge is prohibited. 37. "VIP" passes or other passes to enter the establishment, as well as door charges, cover charges, or any other form of admission charge, including minimum drink order of the sale of drinks is prohibited (excluding charges for prix fixe meals). 38. There shall be no on-site radio, television, video, film, or other electronic media broadcasts, including recordings to be broadcasted at a later time, which include the service of alcoholic beverages, without first obtaining an approved Special Event Permit issued by the City of Newport Beach. 39. Strict adherence to the maximum occupancy limits is required. 40. The Applicant shall maintain a security recording system with 30-day retention and make those recordings available to police upon request. 41. There shall be no exterior advertising or signs of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages. Interior displays of alcoholic beverages or signs which are clearly visible to the exterior shall constitute a violation of this condition. 01-25-19