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HomeMy WebLinkAbout20 - An Extension of Emergency Temporary Use Permits Issued to Businesses Due to State COVID-19 Restrictions (PA2020-069)TO: FROM: CITY OF NEWPORT BEACH City Council Staff Report June 8, 2021 Agenda Item No. 20 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL Seimone Jurjis, Community Development Director - 949-644-3232, sjurjis@newportbeachca.gov PREPARED BY: Makana Nova, Senior Planner, mnova@newportbeachca.gov PHONE: 949-644-3249 TITLE: Resolution No. 2021-58: An Extension of Emergency Temporary Use Permits Issued to Businesses Due to State COVID-19 Restrictions (PA2020-069) ABSTRACT: For the City Council's consideration is a request to extend emergency temporary use permits ("ETUPs") through September 6, 2021, if Emergency Ordinance No. 2020-005 is terminated or repealed. This would allow for commercial uses (such as outdoor dining) and institutional uses to continue to utilize private property, parking lots, sidewalks, and public property as approved through the Back to Business program. Thereafter, ETUP holders who wish to continue their permitted outdoor uses could apply for a limited -term permit which would be reviewed on an individual basis. This resolution also proposes to waive application fees for limited -term permits requested by ETUP holders. RECOMMENDATION: a) Conduct a public hearing; b) Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 of the CEQA Guidelines under Class 1 (Existing Facilities), because this project has no potential to have a significant effect on the environment; and c) Adopt Resolution No. 2021-58, A Resolution of the City Council of the City of Newport Beach, California, Authorizing an Extension of Emergency Temporary Use Permits Issued to Commercial and Institutional Uses for the Use of Private Property, Parking Lots, Sidewalks, and Public Property in the City of Newport Beach (PA2020-069). 20-1 Resolution No. 2021-58: An Extension of Emergency Temporary Use Permits Issued to Businesses Due to State COVID-19 Restrictions (PA2020-069) June 8, 2021 Page 2 DISCUSSION: Back to Business Proaram The Back to Business program was adopted on May 26, 2020, through Emergency Ordinance No. 2020-005 (Attachment B), which authorized the issuance of ETUPs during the COVID-19 pandemic to allow commercial businesses or religious institutions the opportunity to expand their use and utilize parking lots, sidewalks or public property. The application process incorporated an expedited review by City of Newport Beach ("City") departments, ensuring the timely expansion of uses in a safe manner and minimizing impacts to the surrounding properties. ETUP Extension The attached resolution would extend existing ETUPs through September 6, 2021, and allow permit holders to continue to utilize private property, parking lots, sidewalks, and public property pursuant to the previous Emergency Ordinance No. 2020-005. The proposed extension of ETUPs would provide a transition period as restaurants and other commercial/institutional uses recover from the effects of the COVID-19 pandemic, continue operations per industry guidance, and recover economic costs caused by closures. Thereafter, ETUP holders could then apply for a limited -term permit to continue to authorize their use. Applications would be reviewed on an individual basis based on the merits of the location, availability of parking, and land use compatibility. Applications could be approved administratively for durations less than 90 days or for up to a one-year duration through a public hearing process with Zoning Administrator approval. This resolution also proposes to waive application fees for limited -term permits requested by ETUP holders. The current fees are $592 for less than 90 days and $1,994 for requests up to a one-year term. For requests that propose a term of 90 days to one year, a $497 public notice fee is required to defray the administrative costs of preparing and mailing the notice and the costs of publishing the notice in the newspaper. Existing ETUPs To date, approximately 114 commercial and institutional establishments have had ETUPs authorized. Approximately 22 establishments have improvements authorized within the public right-of-way, 18 establishments have improvements authorized in public parking or park areas, and the remaining establishments have improvements authorized on private property or in private parking areas. Many ETUP locations, particularly restaurants with outdoor dining, have expressed an interest in making their improvements permanent. The proposed resolution is not intended to legalize existing outdoor dining improvements, but rather to be "a bridge" to create a path to establish permanent outdoor dining, where appropriate and subject to a public hearing. 20-2 Resolution No. 2021-58: An Extension of Emergency Temporary Use Permits Issued to Businesses Due to State COVID-19 Restrictions (PA2020-069) June 8, 2021 Page 3 Parkina Challenaes The primary challenge to establish more permanent outdoor dining is that private parking lots for restaurants and outdoor dining are constrained by Zoning Code required parking. The current parking requirement for food service uses is one parking space per 30 to 50 square feet of net public area (customer service areas) including outdoor dining areas exceeding 25 percent of the interior net public area or 1,000 square feet, whichever is less. Most existing restaurants are designed to comply with this requirement or have parking waivers and do not provide surplus parking to expand their land use. Parking Study The City has initiated a study and code amendment related to parking for land uses authorized under the Zoning Code. In addition to considering amendments to the methodology and parking ratio for restaurants, the project will examine incentives and parking reductions for rideshare and bicycle facilities, curbside management strategies, and the potential for parking management districts in the City's primary activity nodes. It is expected that the project will likely result in modified or reduced parking requirements for many restaurants, which, in turn, could facilitate the establishment of permanent outdoor dining facilities. The parking update is expected to be completed in two phases. The initial phase will focus on restaurant parking requirements and rideshare and bicycle facility incentives/ reductions. Findings are expected to be presented to the City Council by the end of the calendar year. The second phase, which focuses on curbside management and parking management districts, requires more in-depth analysis and outreach and is expected to be completed mid -year of 2022. It is important to note that for properties located in the coastal zone, any Zoning Code amendments would then require a Local Coastal Program amendment reviewed by the California Coastal Commission before revised parking ratios in these areas could become effective. Therefore, the overall amendment process is anticipated to take 18 to 24 months. In the interim, staff is recommending a limited -term permit application for ETUP holders wishing to continue with their exterior uses and bridging the gap between the proposed September 6, 2021 extension until a code amendment could be approved and effective. The merits of each application would be reviewed on an individual basis. Once a code amendment is effective, limited -term permit holders wishing to establish permanent outdoor dining improvements would then have the opportunity to amend their conditional use permits to meet the new parking requirements or to submit a parking study for a CUP and parking waiver. For improvements in the public right-of-way, applicants could also apply for a Sidewalk Cafe Permit. It is anticipated that outdoor dining design and processing guidelines will be developed to ensure permanent outdoor facilities are aesthetically integrated and do not negatively impact surrounding uses. 20-3 Resolution No. 2021-58: An Extension of Emergency Temporary Use Permits Issued to Businesses Due to State COVID-19 Restrictions (PA2020-069) June 8, 2021 Page 4 Path Toward Permanent Outdoor Dining For outdoor dining located within the public right-of-way, Council Policy L-21 (Sidewalk Cafe Standards and Procedures) may be used to authorize outdoor dining on public sidewalks. The Sidewalk Cafe permit is reviewed and approved by the Public Works Department. Properties located within the coastal zone would also require a Coastal Development Permit ("CDP"). Further review of the policy will be conducted by staff to ensure it provides the maximum opportunities for businesses. Existing ETUPs have varied circumstances best discussed by geographic area: o Airport Area — Most ETUP locations are within private parking areas and are constrained by code -required parking. Permanent dining areas depend on a Zoning Code amendment to reduce parking requirements and an amendment to existing use permits. o Balboa Island — The majority of ETUP improvements in this area are located in sidewalk areas along Marine Avenue. Continued use of Marine Avenue may be approved through the Sidewalk Cafe permit, but maintaining ADA clearances on the public sidewalk would take priority. A CDP would also be required for expanded dining in this area. o Balboa Pier— Most ETUPs issued in the Balboa Pier area are located in the street or on public park property and would likely need to be removed following the conclusion of the Back to Business program. Some improvements in the Peninsula Park area are located within the California Coastal Commission's permit jurisdiction under the adopted Local Coastal Program. These locations pose long- term coastal access and public recreation conflicts which would make the feasibility of permanent private improvements unlikely. o Corona del Mar — ETUP approvals in Corona del Mar include a mix of improvements in the public right-of-way and on private property parking areas, which are constrained by code -required parking. For improvements in the public right-of-way, a Sidewalk Caf6 permit is required from Public Works. ETUP locations within private parking areas depend on a Zoning Code amendment to reduce parking requirements and amendments to existing use permits. All properties located in the coastal zone may require a CDP (generally the south side of West Coast Highway). o Irvine Company Shopping Centers - Most locations are in private parking areas constrained by code -required parking and depend on a Zoning Code amendment to reduce parking requirements and amend existing use permits. 20-4 Resolution No. 2021-58: An Extension of Emergency Temporary Use Permits Issued to Businesses Due to State COVID-19 Restrictions (PA2020-069) June 8, 2021 Page 5 o Newport Pier — Improvements in this area primarily occur on public property or public parking areas. Improvements in pedestrian alleys could be permitted through a Sidewalk Cafe permit in accordance with Council Policy L-21. The majority of the Newport Pier public parking area falls within the California Coastal Commission's permit jurisdiction under the adopted Local Coastal Program. Removing the availability of public parking on a permanent basis may pose a conflict with coastal access in this area. If a program is developed and approved by the California Coastal Commission that would permanently eliminate public parking spaces for outdoor dining use, then the City will need to enter into agreements with business tenants to reimburse the City for loss of parking revenue and the use of the public space. o Mariners' Mile — Most ETUP locations are within private parking areas constrained by code -required parking. Permanent dining areas depend on a Zoning Code amendment to reduce parking requirements and amend existing use permits. Many properties are located in the coastal zone and may also require a CDP. o Peninsula/Lido — ETUP approvals on the Balboa Peninsula and Lido Village area include a mix of improvements in the public right-of-way and on private property parking areas. For improvements in the public right-of-way, a Sidewalk Cafe permit is required from Public Works. ETUP locations within private parking areas are constrained by code -required parking and depend on a Zoning Code amendment to reduce parking requirements and amend existing use permits. All properties are located in the coastal zone may require a CDP. o West Newport — All ETUP locations in West Newport are within private parking areas constrained by code -required parking. Permanent dining areas depend on a Zoning Code amendment to potentially reduce parking requirements and amend existing use permits to accommodate expanded patio areas. Properties are located in the coastal zone and will require a CDP. o Others - Most ETUP locations are within private parking areas constrained by code -required parking. Permanent dining areas depend on a Zoning Code amendment to reduce parking requirements and an amendment to existing use permits. Properties located in the coastal zone may also require a CDP. Summary In summary, this resolution proposes an automatic extension of ETUPs through September 6, 2021. Thereafter, ETUP holders could apply for a limited -term permit. Limited -term permits will be reviewed based on their individual merits. Consideration will be taken for the proximity to residential uses, the hours of operations, noise and parking impacts. The City's review will focus on finding a balance to minimize impacts to residential uses. Limited -term permits are discretionary applications that are subject to review and approval by the Community Development Director or the Zoning Administrator for applications greater than 90 days subject to a public hearing. Any decision by the Community Development Director or the Zoning Administrator can be appealed to the Planning Commission within 14 days of the decision. 20-5 Resolution No. 2021-58: An Extension of Emergency Temporary Use Permits Issued to Businesses Due to State COVID-19 Restrictions (PA2020-069) June 8, 2021 Page 6 If a code amendment to amend parking ratios for land uses is adopted in the future by the City Council, then ETUP holders constrained by existing parking requirements may apply for an amendment to their existing use permit on an individual basis. Amendments to use permits are discretionary and subject to review by the Planning Commission. FISCAL IMPACT: This resolution proposes to waive application fees for limited -term permits requested by ETUP holders ($592 for requests less than 90 days and $1,994 for requests up to a one-year term). For requests that propose a term of 90 days to one year, applicants would still be responsible for the payment of a $497 public notice fee to defray the costs of the public notice. Depending on how many businesses apply for a limited -term permit, it is estimated that the cost of the fee waiver is $200,000 in lost revenue. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, under Class 1 (Existing Facilities) because it has no potential to have a significant effect on the environment. The project consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of existing or former use. This exemption includes additions to existing structures that will not result in an increase of more than 50 percent of the floor area of the structures before the addition, or 2,500 square feet, whichever is less. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Attachment A —Resolution No. 2021-58 Attachment B — Emergency Ordinance No. 2020-005 20-6 Attachment A Resolution No. 2021-58 20-7 RESOLUTION NO. 2021-58 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, AUTHORIZING AN EXTENSION OF EMERGENCY TEMPORARY USE PERMITS ISSUED TO COMMERCIAL AND INSTITUTIONAL USES FOR THE USE OF PRIVATE PROPERTY, PARKING LOTS, SIDEWALKS, AND PUBLIC PROPERTY IN THE CITY OF NEWPORT BEACH (PA2020- 069) 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 ("State"); WHEREAS, on January 31, 2020, the United States Secretary of Health and Human Services announced a nationwide public health emergency in response to the COVID-19 outbreak; WHEREAS, on March 4, 2020, Governor Gavin Newsom declared a State of Emergency to make additional resources available, formalize emergency actions already underway across multiple state agencies and departments, and help the State prepare for the broader spread of COVID-19 ("State of Emergency"); WHEREAS, on March 15, 2020, in response to the COVID-19 outbreak, Newport Beach City Manager Grace Leung, who is the Director of Emergency Services ("Director of Emergency Services") for the City, issued a Proclamation of Local Emergency ("Proclamation"); WHEREAS, on March 18, 2020, the Newport Beach City Council ("City Council") ratified the Proclamation and authorized the Director of Emergency Services to take certain actions to protect the health, safety, and welfare of the public; WHEREAS, on May 26, 2020, the City Council adopted Emergency Ordinance No. 2020-005, authorizing the Community Development Director to grant emergency temporary use permits ("ETUP") to commercial and institutional uses to utilize private property, parking lots, sidewalks, and public property to continue operating during COVID- 19; Resolution No. 2021 - Page 2 of 4 WHEREAS, on July 29, 2020, the California Department of Public Health issued COVID-19 Industry Guidance for dine -in restaurants consisting of restaurants, brewpubs, craft distilleries, breweries, bars, pubs, and wineries to support a safe, clean environment for workers and customers including organization, sanitation, and social distancing guidelines; WHEREAS, on June 15, 2021, Governor Newsom intends to end the Blueprint for a Safer Economy and reopen the economy as vaccination rates increase, vaccine supply is available to Californians 12 years or older, and infection and hospitalizations rates decline; WHEREAS, at that time, businesses may return to usual operations subject to compliance with the Division of Occupational Safety and Health ("Cal OSHA") Emergency Temporary Standards on COVID-19 which continue to require physical distancing and use of outdoor air to reduce the transmission of COVID-19; WHEREAS, it is essential that the City facilitate the steady reduction of COVID-19 while allowing the local economy to reopen to the fullest extent possible; and WHEREAS, to help existing commercial businesses and private institutions operate in a safe manner where social distancing is maintained in accordance with guidance from the federal, state, and local health officials, it is necessary to temporarily allow business and institutional uses to continue to operate on private property, parking lots, sidewalks, and public property. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: If Emergency Ordinance No. 2020-005 is terminated or repealed prior to September 6, 2021, all existing and valid Emergency Temporary Use Permits ("ETUP") shall remain valid through September 6, 2021, subject to compliance with the conditions of approval and procedures established by Emergency Ordinance No. 2020- 005. Section 2: Upon expiration of the extension set forth in Section 1, ETUP permit holders may apply for a limited term permit to continue to use spaces authorized through an ETUP. Limited term permit application fees shall be waived with the exception of public noticing fees for any application that proposes a term of 90 days or longer. Section 3: Except as expressly set forth herein, nothing contained in this resolution shall be deemed to waive any fees otherwise required by any other provision of law, including fees collected by the City on behalf of any other public agency or entity, nor otherwise waive compliance with any other applicable provisions of the NBMC or any other City ordinance, policy or regulation. 20-9 Resolution No. 2021 - Page 3 of 4 Section 4: The City Council finds the adoption of this resolution is not subject to the California Environmental Quality Act ("CEQA") pursuant to Section 15301 (Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because the project consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of existing or former use. This exemption includes additions to existing structures that will not result in an increase of more than 50 percent of the floor area of the structures before the addition, or 2,500 square feet, whichever is less. Section 5: The recitals provided in this resolution are true and correct and are incorporated into the substantive portion of this resolution. Additionally, Emergency Ordinance No. 2020-005, adopted by the City Council on May 26, 2020, is attached hereto as Exhibit "A" and incorporated herein by reference to this resolution. Section 6: If any section, subsection, sentence, clause or phrase of this resolution is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. 20-10 Resolution No. 2021 - Page 4 of 4 Section 7: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this 8th day of June, 2021. Brad Avery Mayor ATTEST: Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Aaro' . Harp City �florney Attachment(s): Exhibit A - Emergency Ordinance No. 2020-005 20-11 EXHIBIT A EMERGENCY ORDINANCE NO. 2020-005 AN EMERGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, AUTHORIZING THE COMMUNITY DEVELOPMENT DIRECTOR TO GRANT EMERGENCY TEMPORARY USE PERMITS TO COMMERCIAL BUSINESSES AND RELIGIOUS INSTITUTIONS FOR THE UTILIZATION OF PRIVATE PROPERTY, PARKING LOTS, SIDEWALKS AND PUBLIC PROPERTY WHEREAS, Section 200 of the Charter of the City of Newport Beach ("City") 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, on January 31, 2020, the United States Secretary of Health and Human Services announced a nationwide public health emergency, in response to the COVID-19 outbreak; WHEREAS, on March 4, 2020, Governor Gavin Newsom declared a State of Emergency to make additional resources available, formalize emergency actions already underway across multiple state agencies and departments, and help the state prepare for the broader spread of COVID-19 ("State of Emergency); WHEREAS, on March 11, 2020, the World Health Organization declared the COVID-19 outbreak a pandemic; WHEREAS, on March 15, 2020, Governor Newsom called for all bars, wineries, nightclubs and brewpubs to close throughout the state, urged all seniors and people with chronic health conditions to isolate themselves at home, and for restaurants to reduce occupancy by half to keep people farther away from each other; WHEREAS, on March 15, 2020, in response to the COVID-19 outbreak, Newport Beach City Manager Grace Leung, who is the Director of Emergency Services ("Director of Emergency Services") for the City, issued a Proclamation of Local Emergency ("Proclamation"); WHEREAS, on March 18, 2020, the Newport Beach City Council ratified the Proclamation and authorized the Director of Emergency Services to take certain actions to protect the health, safety, and welfare of the public; 20-12 Emergency Ordinance No. 2020-005 Page 2of6 WHEREAS, on March 19, 2020, Governor Newsom issued Executive Order N-33- 20, requiring all individuals living in the State of California to stay home or at their place of residence, except as needed to maintain continuity of operations of the federal critical infrastructure sectors ("Stay at Home Order"); WHEREAS, on March 19, 2020 the Federal Cybersecurity and Infrastructure Security Agency issued guidance identifying 14 critical infrastructure sectors whose workers provide services and functions that are essential to support a strong response to the COMD-19 outbreak; WHEREAS, on April 14, 2020, Governor Newsom outlined six factors that the State of California would consider when modifying the Stay at Home Order including: (1) the ability to test, contact trace, isolate, and support the exposed; (2) the ability to protect those at high risk for COVID-19; (3) the surge capacity for hospital and health systems; (4) the therapeutic development to meet the demand; (5) the ability of businesses, schools, and childcare facilities to support physical distancing, and (6) a determination of when to reinstitute measures like Stay at Home; WHEREAS, on April 28 2020, Governor Newsom announced four "Resilience Roadmap Stages" that the State of California would use to guide its gradual reopening process, which consists of the following four stages: Stage 1, Safety and Preparedness; Stage 2, Lower Risk Workplaces; Stage 3, Higher Risk Workplaces; and Stage 4, End of Stay at Home Order; WHEREAS, on May 4, 2020, Governor Newsom announced that, beginning May 8, 2020, the State of California would move from Stage 1, which had been in place statewide since the issuance of the Stay at Home Order, to Stage 2, which is the gradual re -opening of some lower risk workplaces, WHEREAS, COVID-19 has been detected in millions of people worldwide, including, as of May 13, 2020, 130 cases in the City, and is primarily spread from person to person; WHEREAS, COVID-19 is easily transmitted, especially in group settings, and it is essential that the spread of the virus be slowed to protect the ability of public and private health care providers to handle the influx of new patients and safeguard public health and safety; WHEREAS, as commercial businesses and religious institutions in the City begin to re -open, it is critical that they do so in a manner where social distancing is maintained to limit the spread of COVID-19; 20-13 Emergency Ordinance No. 2020-005 Page 3 of 6 WHEREAS, to help existing commercial businesses and religious institutions operate in a safe manner where social distancing is maintained in accordance with guidance from the State of California and local health officials, it is necessary to temporarily allow commercial businesses and religious institutions to operate on private property, parking lots, sidewalks and public property; and WHEREAS, Charter Section 412 provides that an ordinance necessary to preserve the public peace, health or safety, may be introduced and adopted at one and the same meeting if passed by at least five affirmative votes. NOW, THEREFORE, the City Council of the City of Newport Beach ordains as follows: Section 1: The City Council of the City of Newport Beach hereby finds and declares that this emergency ordinance is necessary to help limit the spread of COVID- 19 and to protect the health, safety and welfare of the public because it is essential that contact between persons, which could lead to the spread of COVID-19, be limited, and the use of private property, parking lots, sidewalks and public property is necessary to allow existing commercial businesses and religious institutions operate in a safe manner where social distancing is maintained in accordance with guidelines issued by the State of California and local health officials. Section 2: The Community Development Director is hereby authorized to grant emergency temporary use permits, which allow for the temporary use of private property, parking lots, sidewalks and public property for commercial and religious uses. An application for an emergency temporary use permit shall be filed with the Community Development Department, on forms approved by the Community Development Director, and shall include all information and materials specified by the Community Development Director. After consulting with City departments, as applicable, the Community Development Director may approve or conditionally approve an emergency temporary use permit if the Community Development Director finds that the temporary use would not create a hazard to the health, safety or welfare of the public. The Community Development Director may impose any conditions deemed necessary to ensure that the temporary use does not create a hazard to the public health, safety or welfare of the public. 20-14 Emergency Ordinance No. 2020-005 Page 4 of 6 The Community Development Director shall have the authority to immediately revoke any emergency temporary use permit granted pursuant to this emergency ordinance if the Community Development Director determines that there has been a violation of any condition of approval. Any revocation of an emergency temporary use permit shall be deemed effective upon the posting of a notice of revocation at the site of the business granted the emergency temporary use permit. Any decision made by the Community Development Director, pursuant to the authority granted the Community Development Director under this emergency ordinance, may be appealed by the applicant/permittee to the City Manager by notifying the City Manager of the appeal within three (3) calendar days of the decision. The City Manager shall have authority to sustain, reverse or modify the decision of the Community Development Director. The City Manager's decision shall be final. All application fees and appeal fees directly related to this emergency ordinance are hereby waived. Section 3: As long as an emergency temporary use permit is in effect, all Newport Beach Municipal Code provisions and any restrictions set forth in a discretionary permit regulating uses, nonconforming uses, development standards, parking, signage, permit procedures or other regulations specifically addressed in the emergency temporary use permit that would otherwise regulate the use and development of private or public property, are hereby suspended for sites subject to an emergency temporary use permit, to the extent that the Newport Beach Municipal Code provisions or restrictions set forth in a discretionary permit conflict with the terms of the emergency temporary use permit. Section 4: As a condition of receiving an emergency temporary use permit, the permittees shall agree to defend, indemnify and hold harmless the City and its employees 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 the issuance of the emergency temporary use permit. 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, or proceeding whether incurred by applicant, City, and/or the parties initiating or bringing such proceeding. 20-15 Emergency Ordinance No. 2020-005 Page 5 of 6 Section 5: Permittees that utilize public property shall obtain and maintain insurance in an amount specified by the City's Risk Manager. Unless otherwise indicated by the Risk Manager, permittees shall obtain and maintain commercial general liability insurance on an "occurrence" basis, including completed products and completed operations, property damage, bodily injury and personal and advertising injury with a limit of not less than $1,000,000 per occurrence. This insurance shall be endorsed to name the "City of Newport Beach, the City Council, its employees, and agents" as additional insureds, and provide that this insurance is primary and non-contributory with any other insurance or self-insurance available to the City. Permittees shall also maintain workers' compensation as required by the State of California with Statutory Limits, and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury or disease. The Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of the "City of Newport Beach, the City Council, its employees, and agents." If permittee maintains broader coverage and/or higher limits than the minimums provided in this Section, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the permittee. All policies shall be issued by an agent or representative of an insurance company licensed to do business in the State of California, which has one of the three highest or best ratings from the Alfred M. Best company. All insurance policies shall contain an endorsement obligating the insurance company to furnish the Community Development Director with at least thirty (30) days written notice in advance of the cancellation of the policy. The City reserves the right to require a permittee to submit the requisite insurance documents for review at any time. Section 6: Areas used for temporary commercial and religious uses shall be accessible to the disabled. Section 7: The emergency temporary use permit shall expire fourteen (14) days after this emergency ordinance is terminated or repealed, as provided for in Section 11. Section 8: The recitals provided in this emergency ordinance are true and correct and are incorporated into the substantive portion of this emergency ordinance. Section 9: If any section, subsection, sentence, clause or phrase of this emergency 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 emergency ordinance. The City Council hereby declares that it would have passed this emergency 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. 20-16 Emergency Ordinance No. 2020-005 Page 6 of 6 Section 10: The City Council finds and determines that the introduction and adoption of this emergency ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15269(c) (the activity is necessary to prevent or mitigate an emergency), 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Section 11: This emergency ordinance shall become effective May 26, 2020, and shall continue in full force and effect until: (a) the local emergency proclaimed on March 15, 2020 and ratified by the City Council on March 18, 2020, is terminated by proclamation of the City Council; or (b) such time as this emergency ordinance is repealed in whole, or in part, by the City Council. Section 12: The Mayor shall sign, and the City Clerk shall attest to the passage of this emergency ordinance. The City Clerk shall cause the emergency ordinance, or a summary thereof, to be published pursuant to City Charter Section 414. This emergency ordinance was introduced and adopted at a regular meeting of the City Council of the City of Newport Beach held on the 26th day of May 2020, by the following vote, to -wit: Mayor O'Neill, Mayor Pro Tem Avery, Council Member Brenner, Council Member Dixon, Council Member Duffield AYES: Council Member Herdman, Council Member Muldoon NAYS: ABSENT: ATTEST: LEILANI I. BROWN, CITY CLERK APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE AARON C. HARP, CITY AYYORNEY MAYORWILL O'NEILL, ' 20-17 STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } 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 Emergency Ordinance No. 2020-005, was duly introduced and adopted at a regular meeting of the City Council on the 261h day of May, 2020, by the following vote, to wit: AYES: Mayor Will O'Neill, Mayor Pro Tem Brad Avery, Council Member Joy Brenner, Council Member Diane Dixon, Council Member Duffy Duffield, Council Member Jeff Herdman, Council Member Kevin Muldoon NAYS: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 271' day of May, 2020. /1 Cl/ r � L_ Leilani I. Brown, MMC 1 City Clerk City of Newport Beach, California CERTIFICATE OF PUBLICATION STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, LEILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify that Emergency Ordinance No. 2020-005 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 newspaper of general circulation on the following date: Published Date: May 30, 2020 In witness whereof, I have hereunto subscribed my name this day of 2020. Ai�b,hw� Leilani I. Brown, M City Clerk City of Newport Beach, California 20-18 ATTACHMENT B EMERGENCY ORDINANCE NO. 2020-005 AN EMERGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, AUTHORIZING THE COMMUNITY DEVELOPMENT DIRECTOR TO GRANT EMERGENCY TEMPORARY USE PERMITS TO COMMERCIAL BUSINESSES AND RELIGIOUS INSTITUTIONS FOR THE UTILIZATION OF PRIVATE PROPERTY, PARKING LOTS, SIDEWALKS AND PUBLIC PROPERTY WHEREAS, Section 200 of the Charter of the City of Newport Beach ("City") 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, on January 31, 2020, the United States Secretary of Health and Human Services announced a nationwide public health emergency, in response to the COVID-19 outbreak; WHEREAS, on March 4, 2020, Governor Gavin Newsom declared a State of Emergency to make additional resources available, formalize emergency actions already underway across multiple state agencies and departments, and help the state prepare for the broader spread of COVID-19 ("State of Emergency); WHEREAS, on March 11, 2020, the World Health Organization declared the COVID-19 outbreak a pandemic; WHEREAS, on March 15, 2020, Governor Newsom called for all bars, wineries, nightclubs and brewpubs to close throughout the state, urged all seniors and people with chronic health conditions to isolate themselves at home, and for restaurants to reduce occupancy by half to keep people farther away from each other; WHEREAS, on March 15, 2020, in response to the COVID-19 outbreak, Newport Beach City Manager Grace Leung, who is the Director of Emergency Services ("Director of Emergency Services") for the City, issued a Proclamation of Local Emergency ("Proclamation"); WHEREAS, on March 18, 2020, the Newport Beach City Council ratified the Proclamation and authorized the Director of Emergency Services to take certain actions to protect the health, safety, and welfare of the public; 20-19 Emergency Ordinance No. 2020-005 Page 2 of 6 WHEREAS, on March 19, 2020, Governor Newsom issued Executive Order N-33- 20, requiring all individuals living in the State of California to stay home or at their place of residence, except as needed to maintain continuity of operations of the federal critical infrastructure sectors ("Stay at Home Order"); WHEREAS, on March 19, 2020 the Federal Cybersecurity and Infrastructure Security Agency issued guidance identifying 14 critical infrastructure sectors whose workers provide services and functions that are essential to support a strong response to the COVID-19 outbreak; WHEREAS, on April 14, 2020, Governor Newsom outlined six factors that the State of California would consider when modifying the Stay at Home Order including: (1) the ability to test, contact trace, isolate, and support the exposed; (2) the ability to protect those at high risk for COVID-19; (3) the surge capacity for hospital and health systems; (4) the therapeutic development to meet the demand; (5) the ability of businesses, schools, and childcare facilities to support physical distancing; and (6) a determination of when to reinstitute measures like Stay at Home; WHEREAS, on April 28 2020, Governor Newsom announced four "Resilience Roadmap Stages" that the State of California would use to guide its gradual reopening process, which consists of the following four stages: Stage 1, Safety and Preparedness; Stage 2, Lower Risk Workplaces; Stage 3, Higher Risk Workplaces; and Stage 4, End of Stay at Home Order; WHEREAS, on May 4, 2020, Governor Newsom announced that, beginning May 8, 2020, the State of California would move from Stage 1, which had been in place statewide since the issuance of the Stay at Home Order, to Stage 2, which is the gradual re -opening of some lower risk workplaces; WHEREAS, COVID-19 has been detected in millions of people worldwide, including, as of May 13, 2020, 130 cases in the City, and is primarily spread from person to person; WHEREAS, COVID-19 is easily transmitted, especially in group settings, and it is essential that the spread of the virus be slowed to protect the ability of public and private health care providers to handle the influx of new patients and safeguard public health and safety; WHEREAS, as commercial businesses and religious institutions in the City begin to re -open, it is critical that they do so in a manner where social distancing is maintained to limit the spread of COVID-19; 20-20 Emergency Ordinance No. 2020-005 Page 3 of 6 WHEREAS, to help existing commercial businesses and religious institutions operate in a safe manner where social distancing is maintained in accordance with guidance from the State of California and local health officials, it is necessary to temporarily allow commercial businesses and religious institutions to operate on private property, parking lots, sidewalks and public property; and WHEREAS, Charter Section 412 provides that an ordinance necessary to preserve the public peace, health or safety, may be introduced and adopted at one and the same meeting if passed by at least five affirmative votes. NOW, THEREFORE, the City Council of the City of Newport Beach ordains as follows: Section 1: The City Council of the City of Newport Beach hereby finds and declares that this emergency ordinance is necessary to help limit the spread of COVID- 19 and to protect the health, safety and welfare of the public because it is essential that contact between persons, which could lead to the spread of COVID-19, be limited, and the use of private property, parking lots, sidewalks and public property is necessary to allow existing commercial businesses and religious institutions operate in a safe manner where social distancing is maintained in accordance with guidelines issued by the State of California and local health officials. Section 2: The Community Development Director is hereby authorized to grant emergency temporary use permits, which allow for the temporary use of private property, parking lots, sidewalks and public property for commercial and religious uses. An application for an emergency temporary use permit shall be filed with the Community Development Department, on forms approved by the Community Development Director, and shall include all information and materials specified by the Community Development Director. After consulting with City departments, as applicable, the Community Development Director may approve or conditionally approve an emergency temporary use permit if the Community Development Director finds that the temporary use would not create a hazard to the health, safety or welfare of the public. The Community Development Director may impose any conditions deemed necessary to ensure that the temporary use does not create a hazard to the public health, safety or welfare of the public. 20-21 Emergency Ordinance No. 2020-005 Page 4 of 6 The Community Development Director shall have the authority to immediately revoke any emergency temporary use permit granted pursuant to this emergency ordinance if the Community Development Director determines that there has been a violation of any condition of approval. Any revocation of an emergency temporary use permit shall be deemed effective upon the posting of a notice of revocation at the site of the business granted the emergency temporary use permit. Any decision made by the Community Development Director, pursuant to the authority granted the Community Development Director under this emergency ordinance, may be appealed by the applicant/permittee to the City Manager by notifying the City Manager of the appeal within three (3) calendar days of the decision. The City Manager shall have authority to sustain, reverse or modify the decision of the Community Development Director. The City Manager's decision shall be final. All application fees and appeal fees directly related to this emergency ordinance are hereby waived. Section 3: As long as an emergency temporary use permit is in effect, all Newport Beach Municipal Code provisions and any restrictions set forth in a discretionary permit regulating uses, nonconforming uses, development standards, parking, signage, permit procedures or other regulations specifically addressed in the emergency temporary use permit that would otherwise regulate the use and development of private or public property, are hereby suspended for sites subject to an emergency temporary use permit, to the extent that the Newport Beach Municipal Code provisions or restrictions set forth in a discretionary permit conflict with the terms of the emergency temporary use permit. Section 4: As a condition of receiving an emergency temporary use permit, the permittees shall agree to defend, indemnify and hold harmless the City and its employees 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 the issuance of the emergency temporary use permit. 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, or proceeding whether incurred by applicant, City, and/or the parties initiating or bringing such proceeding. 20-22 Emergency Ordinance No. 2020-005 Page 5 of 6 Section 5: Permittees that utilize public property shall obtain and maintain insurance in an amount specified by the City's Risk Manager. Unless otherwise indicated by the Risk Manager, permittees shall obtain and maintain commercial general liability insurance on an "occurrence" basis, including completed products and completed operations, property damage, bodily injury and personal and advertising injury with a limit of not less than $1,000,000 per occurrence. This insurance shall be endorsed to name the "City of Newport Beach, the City Council, its employees, and agents" as additional insureds, and provide that this insurance is primary and non-contributory with any other insurance or self-insurance available to the City. Permittees shall also maintain workers' compensation as required by the State of California with Statutory Limits, and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury or disease. The Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of the "City of Newport Beach, the City Council, its employees, and agents." If permittee maintains broader coverage and/or higher limits than the minimums provided in this Section, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the permittee. All policies shall be issued by an agent or representative of an insurance company licensed to do business in the State of California, which has one of the three highest or best ratings from the Alfred M. Best company. All insurance policies shall contain an endorsement obligating the insurance company to furnish the Community Development Director with at least thirty (30) days written notice in advance of the cancellation of the policy. The City reserves the right to require a permittee to submit the requisite insurance documents for review at any time. Section 6: Areas used for temporary commercial and religious uses shall be accessible to the disabled. Section 7: The emergency temporary use permit shall expire fourteen (14) days after this emergency ordinance is terminated or repealed, as provided for in Section 11. Section 8: The recitals provided in this emergency ordinance are true and correct and are incorporated into the substantive portion of this emergency ordinance. Section 9: If any section, subsection, sentence, clause or phrase of this emergency 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 emergency ordinance. The City Council hereby declares that it would have passed this emergency 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. 20-23 Emergency Ordinance No. 2020-005 Page 6 of 6 Section 10: The City Council finds and determines that the introduction and adoption of this emergency ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15269(c) (the activity is necessary to prevent or mitigate an emergency), 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Section 11: This emergency ordinance shall become effective May 26, 2020, and shall continue in full force and effect until: (a) the local emergency proclaimed on March 15, 2020 and ratified by the City Council on March 18, 2020, is terminated by proclamation of the City Council, or (b) such time as this emergency ordinance is repealed in whole, or in part, by the City Council. Section 12: The Mayor shall sign, and the City Clerk shall attest to the passage of this emergency ordinance. The City Clerk shall cause the emergency ordinance, or a summary thereof, to be published pursuant to City Charter Section 414. This emergency ordinance was introduced and adopted at a regular meeting of the City Council of the City of Newport Beach held on the 26th day of May 2020, by the following vote, to -wit: Mayor O'Neill, Mayor Pro Tem Avery, Council Member Brenner, Council Member Dixon, Council Member Duffield AYES: Council Member Herdman, Council Member Muldoon NAYS: ABSENT: ATTEST: LEILANI I. BROWN, CITY CLERK APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE AARON C. HARP, CITY A ORNEY WILL O'NEILL, MAYOR 20-24 STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } 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 Emergency Ordinance No. 2020-005, was duly introduced and adopted at a regular meeting of the City Council on the 26th day of May, 2020, by the following vote, to wit: AYES: Mayor Will O'Neill, Mayor Pro Tem Brad Avery, Council Member Joy Brenner, Council Member Diane Dixon, Council Member Duffy Duffield, Council Member Jeff Herdman, Council Member Kevin Muldoon NAYS: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 27th day of May, 2020. Leilani I. Brown, MMC I City Clerk City of Newport Beach, California CERTIFICATE OF PUBLICATION STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, LEILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify that Emergency Ordinance No. 2020-005 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 newspaper of general circulation on the following date: Published Date: May 30, 2020 �D In witness whereof, I have hereunto subscribed my name this 5 A day of 2020. �.�LIFo% 4a,N*k_ Leilani I. Brown, MPO City Clerk City of Newport Beach, California 20-25