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HomeMy WebLinkAbout2.0_Baja Sharkeez Conditional Use Permit Review_PA2017-255 CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT July 21, 2022 Agenda Item No. 2 SUBJECT: Baja Sharkeez Conditional Use Permit Review (PA2017-255) ▪ Conditional Use Permit No. UP2017-034 SITE LOCATION: 110 and 114 Mc Fadden Place APPLICANT: Baja Sharkeez OWNER: Michael Fazzi PLANNER: Liz Westmoreland, Associate Planner 949-644-3234, lwestmoreland@newportbeachca.gov PROJECT SUMMARY A one-year review of Conditional Use Permit No. UP2017-034, which authorized the operation of an eating and drinking establishment with late hours and a Type 47 (On- Sale General Eating Place) Alcoholic Beverage control (ABC) License. Use Permit No. UP2017-034 authorized changes to the property’s historical use permits including increasing hours of operation in the morning and expanding into the adjacent suite at 110 Mc Fadden Place. The purpose of this review is to determine compliance with the conditions of approval of the condtional use permit with a focus on alcohol sales in the morning between the hours of 9:00 a.m. and 11:00 a.m. RECOMMENDATION 1) Receive public comments; 2) Find this project review categorically exempt under Section 15321, of the State CEQA (California Environmental Quality Act) Guidelines – Class 21 – Enforcement Actions by Regulatory Agencies; and 3) Accept and file the one-year review of Conditional Use Permit No. UP2017-034. 1 INTENTIONALLY BLANK PAGE2 Baja Sharkeez Conditional Use Permit Review (PA2017-255) Planning Commission, July 21, 2022 Page 2 VICINITY MAP GENERAL PLAN ZONING LOCATION GENERAL PLAN ZONING CURRENT USE ON-SITE Mixed Use Water 2 (MU- W2) Mixed-Use Water Related (MU-W2) Baja Sharkeez NORTH MU-W2 MU-W2 Office, parking lot SOUTH MU-W2, Multiple Residential (RM) MU-W2, Multiple Residential (RM) Mixed use buildings, retail, restaurants, multi-family residential EAST MU-W2 MU-W2 Parking lot, multi-family residential WEST Visitor Serving Commercial (CV) Commercial Visitor- Serving (CV) McFadden Square, municipal parking lot, restaurants, visitor accommodations 3 INTENTIONALLY BLANK PAGE4 Baja Sharkeez Conditional Use Permit Review (PA2017-255) Planning Commission, July 21, 2022 Page 3 INTRODUCTION Project Setting The subject property is located within the McFadden Square area of the Balboa Peninsula near the Newport Pier. Surrounding land uses include multi-family residential units across Court Avenue to the south; retail, coffee shop, and food service businesses with residential above to the west; McFadden Place to the north; and a small office building and parking lot to the east across the alley. The 137-parking-space McFadden Square municipal parking lot is located adjacent to the project site to the north. Also located within walking distance is the Newport Pier municipal parking lot which contains approximately 260 parking spaces. Background Prior Use Permit History Various restaurants and bars serving alcohol have occupied the subject building since the early 1970s. The subject building was historically divided and operated as two separate restaurant spaces; 110 Mc Fadden and 114 Mc Fadden. Both restaurant spaces (110 and 114 Mc Fadden) have historically shared the 10 onsite parking spaces at the rear of the property. In the 1990s, Baja Sharkeez moved into the 114 Mc Fadden space under an existing use permit that was intended for more of a nightclub operation. In 2018, the neighboring restaurant at 110 Mc Fadden became vacant. Subsequently, Baja Sharkeez applied for a use permit amendment that included expanding into the adjacent 110 Mc Fadden space to merge the two restaurant spaces and create a new dining room. The original Baja Sharkeez dining room is referred to as “114 Mc Fadden” and the expanded dining room is referred to as “110 Mc Fadden.” See Figure 1 below for present day conditions: Figure 1: Current Restaurant Street View 114 Mc Fadden Original Dining Room 110 Mc Fadden Expanded Dining Room 5 Baja Sharkeez Conditional Use Permit Review (PA2017-255) Planning Commission, July 21, 2022 Page 4 Figure 2: Dining Room Floor Plans Conditional Use Permit No. UP2017-034 Summary On June 18, 2020, the Planning Commission approved Conditional Use Permit No. UP2017-034 authorizing the expanded eating and drinking establishment with late hours and a Type 47 ABC License. The approved resolution is included as Attachment No. PC 1 (Resolution No. PC2020-021). The conditional use permit authorized physical improvements and operational changes described below: • Install retractable roof and remodel existing 110 Mc Fadden space to modernize building and serve as an expanded dining room space; • Increase morning hours of operation from 11:00 a.m. to 9:00 a.m.; • Reduce late night hours for 114 Mc Fadden from 2:00 a.m. to 1:30 a.m. closing time and 110 Mc Fadden conditioned to close by 11:00 p.m.; • Expand existing Type 47 ABC (On-Sale General) license to include 110 Mc Fadden dining room expansion; and • Restripe the rear parking lot to create an accessible space; The existing Baja Sharkeez dining room and expanded dining room are now regulated under one use permit (UP2017-034). A detailed discussion of the approved changes can be found in the staff report included as Attachment No. PC 2. 6 Baja Sharkeez Conditional Use Permit Review (PA2017-255) Planning Commission, July 21, 2022 Page 5 The building permit for the renovation was approved in February 2021 and the final building inspection was conducted in September 2021. Operations within the 110 Mc Fadden dining room expansion commenced July 4, 2021, with a temporary certificate of occupancy. After the physical improvements were complete, an Operator’s License and associated Security Plan were reviewed by the Chief of Police. The Operator’s License is expected to be approved by the Chief of Police in July 2022. As detailed in the approved Minutes for June 18, 2020 (Attachment No. PC 3), during the hearing, a condition of approval was added to the draft resolution requiring a one- year review1 of Use Permit No. UP2017-034 to evaluate compliance with a specific focus on alcohol service in the morning hours between 9 and 11 a.m. Temporary Outdoor Dining Approvals During the COVID-19 pandemic, emergency temporary use permits (ETUP) were authorized throughout the City for temporary outdoor dining patios. Baja Sharkeez received approval of ETUP No. UP2020-017 (PA2020-088), followed by ETUP No. UP2020-155 (PA2020-269) to allow an approximately 2,000 square foot patio within the rear parking lot. In December 2021, the ETUP program ended. The applicant applied for a limited term permit and coastal development permit to maintain a portion of the outdoor dining area. On December 16, 2021, the applicant received approval from the Zoning Administrator for Limited Term Permit No. XP2021-022 and Coastal Development Permit No. CD2021-047 (PA2021-201) that authorized a smaller version of the outdoor dining patio. These permits authorized a 900-square-foot patio for a one-year term (January 1, 2022 to December 31, 2022). The Limited Term Permit is included as Attachment No. PC 4. The applicant may request an extension from the Zoning Administrator for up to one additional year. To maintain the outdoor dining patio in the rear parking lot on a permanent basis, the applicant would be required to apply for an amendment to Conditional Use Permit No. UP2017-034. Although not part of the use permit review, staff has observed no issues related to compliance with the LTP/CDP and five parking spaces including the accessible space remain available for use by employees or customers. 1 The condition of approval specified that the one-year review should occur after one year of operation in the newly expanded space (110 Mc Fadden dining room). 7 Baja Sharkeez Conditional Use Permit Review (PA2017-255) Planning Commission, July 21, 2022 Page 6 DISCUSSION Overview of Compliance A complete list of conditions of approval are included as Attachment No. PC 1 (Resolution No. PC2020-021). As part of this review, staff has assessed each condition for compliance, and a summary of the key areas are evaluated in this report. The operator has generally complied with the approved conditions of approval for Use Permit No. UP2017-034. The conditions of approval regulate and restrict operations to the following timeline on a typical day: Table 1: Daily Operations Time of Day Event/Action 9:00 a.m. Open for business 9:00 p.m. All doors, windows, patio areas (114 Mc Fadden), and retractable roof (110 Mc Fadden) close except for egress and ingress. 10:30 p.m. “Last call” for alcohol service at 110 Mc Fadden dining room and no new patrons may enter the dining room. Employees advise existing customers in the 110 Mc Fadden dining room of the upcoming closing time of 11:00 pm. Patrons may leave the building entirely or enter 114 Mc Fadden dining room through the connecting door. Manager on duty restricts occupancy at 114 Mc Fadden to 141 persons. 11:00 p.m. Any remaining patrons exit 110 Mc Fadden and connecting door is closed. 110 Mc Fadden dining room closes. Cleaning operations will occur after 11:00 p.m. 1:00 a.m. Last call at 114 Mc Fadden dining room. 1:30 a.m. No further sales, service, or consumption of alcoholic beverages allowed. Remaining patrons begin to leave the premises The applicant has complied with the conditions of approval related to the allowed opening and closing times, service of alcohol, and occupancy restrictions except for two violations in 2021 for leaving the doors and windows open after 9:00 p.m. Those violations are discussed in the Code Enforcement Review section of this report. The focus of the conditional use permit review is morning alcohol service. Specific conditions of approval were included in the approved resolution to reduce potential issues related to service of alcohol during this time, including: 8 Baja Sharkeez Conditional Use Permit Review (PA2017-255) Planning Commission, July 21, 2022 Page 7 Condition No. 2: Sales, service, and consumption of alcoholic beverages between the hours of 9 am and 11 am shall only be allowed on weekends (Friday through Sunday) and certain holidays (New Year’s Day, Saint Patrick’s Day, Cinco de Mayo, Memorial Day, 4th of July, and Labor Day), and shall occur only in conjunction with the purchase of food from the regular menu. [Intended to prohibit daily alcohol service from 9 to 11 a.m.]. Condition No. 6.: Free refills and/or “all you can drink” deals on alcohol shall be prohibited. [Intended to prohibit bottomless mimosas]. There have been no reported issues related to alcohol service during the hours of 9:00 a.m. to 11:00 a.m. and staff has no concerns related to the continued service of alcohol during the morning hours as conditioned. Code Enforcement Review The Code Enforcement division conducts proactive checks of certain bars and restaurants on a regular basis due to their operating characteristics. The results of their investigations over the prior year are included in the attached Memorandum (Attachment No. PC 5). The Memorandum states that no complaints or code enforcement cases related to alcohol service in the morning have been received. They reported that the business has generally complied with conditions of approval with the exception of a few issue areas that have been resolved. Doors and Windows On July 5, 2021 and October 30, 2021, Code Enforcement issued notice of violations related to the closure of doors, windows, and patios after 9:00 p.m. (see Conditions of Approval No. 5 and 8 below). None of the violations related to the closure of the retractable roof at the 110 Mc Fadden dining room. After the violations were issued, staff met with the owner and manager to explain the conditions and clarify the requirements. Since meeting with staff, there have been no violations related to these conditions of approval: Condition of Approval No. 5: Sales, service and consumption of food and alcoholic beverages shall be permitted in the patio area only between the hours of 9 a.m. and 9 p.m. each day of the week. Condition of Approval No. 8: The rear and side doors and windows shall be kept closed at all times during the operation of the premises, except to allow entry, during emergencies and/or to permit deliveries. Said doors not to consist solely of a screen door or ventilated screen door. Prior to 9 p.m., this condition shall not apply to side windows and the retractable roof if approved by ABC. 9 Baja Sharkeez Conditional Use Permit Review (PA2017-255) Planning Commission, July 21, 2022 Page 8 Noise On October 30, 2021, Code Enforcement issued a notice of violation related to noise exceeding standards of the Newport Beach Municipal Code (NBMC) (Condition of Approval No. 22). Condition of Approval No. 22: All noise generated by the Project shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the NBMC. The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher: Between the hours of 7:00AM and 10:00PM Between the hours of 10:00PM and 7:00AM Location Interior Exterior Interior Exterior Residential Property 45dBA 55dBA 40dBA 50dBA Residential Property located within 100 feet of a commercial property 45dBA 60dBA 45dBA 50dBA Mixed Use Property 45dBA 60dBA 45dBA 50dBA Commercial Property N/A 65dBA N/A 60dBA Subsequently, on January 18, 2022, a noise complaint was received. However, Code Enforcement did not encounter any violations during their six site investigations. Therefore, no issues related to noise occurred after the original violation, and the complaint was closed. On January 25, 2022, a citation was issued for live entertainment due to the presence of a DJ (disc jockey). Condition of Approval No. 53 prohibits live entertainment including a disc jockey: Condition of Approval No. 53: There shall be no live entertainment of any type, including, but not limited to live music, disc jockey or patron dancing. No further citations were issued related to Condition of Approval No. 53 and the issue was resolved. No code enforcement cases, citations, or notices of violation have occurred over the last 6 months. All issues have been sufficiently resolved. Police Department Review The Chief of Police reviewed and is expected to approve the Operator’s License in July 2022. The Police Department has provided statistics regarding the business related to 10 Baja Sharkeez Conditional Use Permit Review (PA2017-255) Planning Commission, July 21, 2022 Page 9 crime and alcohol (Attachment No. PC 6). In 2021, there were two Part I Crimes2 and six Part II3 Crimes related to the subject property. In comparison, there were 187 Part 1 Crimes and 566 Part II Crimes within Police Reporting District RD15 (Baja Sharkeez is located in RD15). There were five arrests, including three for public intoxication at the subject property. There were two alcohol related citations. In comparison, in RD15 there were 580 arrests, including 131 DUI (Alcohol), 122 public intoxication, and two liquor law arrests. Additionally, there were 156 alcohol-related citations. In summary, the statistics provided by the Police Department indicate that was not a substantial amount of crime or alcohol related arrests associated with the property. Specifically, there were no DUI (Alcohol) or Liquor law arrests tied to the property. Lastly, the Operator’s License also provides the Police Department with additional enforcement tools. Applicant’s Statement The applicant provided a response to the code enforcement memorandum, included in this report as Attachment No. PC 7. In the response, the applicant addresses violations related to patio closures, noise complaints, and live entertainment. They provided a response to each issue area and described how they have addressed the issue to prevent further violations. The new dining room at 110 Mc Fadden opened in July 2021 and the operator has been working to educate the team on the new conditional use permit conditions and has modified their training procedures and policies to prevent further issues. The applicant has not received any complaints over the last six months and the issues appear to have been resolved. Conclusion The 2021 approval of Use Permit No. UP2017-034 resulted in bringing the restaurant’s conditions of approval up-to-date with modern conditions, reduced late-night hours from 2:00 a.m. to 1:30 a.m., and resulted in the removal of one ABC License in the area. The updated conditional use permit and Operator License also provide additional tools for the NBPD to control the use should objectionable activities occur. Lastly, the additional hours of food and alcohol service in the morning hours (9:00 a.m. to 11:00 a.m.) has not been detrimental to the area. Based on observed compliance with the conditions of approval and a lack of complaints received by staff, additional use permit reviews are not recommended at this time. Staff recommends that the Planning Commission accept public comments on the conditional use permit and file the review. 2 Part I Crimes are the 8 most serious crimes defined by the FBI Uniform Crime Report – homicide, rape, robbery, aggravated assault, burglary, larceny, auto theft, and arson. 3 Part II Crimes are all other crimes. 11 Baja Sharkeez Conditional Use Permit Review (PA2017-255) Planning Commission, July 21, 2022 Page 10 Alternatives Should the Planning Commission choose to make changes to the Conditional Use Permit, staff can draft a resolution for review at a future noticed public hearing. Environmental Review This Conditional Use Permit review is exempt from environmental review pursuant to Section 15321 (Class 21 - Enforcement Actions by Regulatory Agencies) of the Guidelines for Implementation of the California Environmental Quality Act. This section exempts actions by regulatory agencies to enforce or revoke a lease, permit, license, certificate, or other entitlement for use issued, adopted, or prescribed by the regulatory agency or enforcement of a law, general rule, standard, or objective, administered or adopted by the regulatory agency. Public Notice A courtesy notice of this review was published in the Daily Pilot, mailed to property owners within 300 feet of the property and posted at the site a minimum of 10 days in advance of this hearing. Additionally, the item appeared upon the agenda for this meeting, which was posted at City Hall and on the City website. Prepared by: Submitted by: ______________________________ Liz Westmoreland, Associate Planner ATTACHMENTS PC 1 Resolution No. PC2020-021 PC 2 Planning Commission Staff Report dated June 18, 2020 (attachments omitted) PC 3 Planning Commission Minutes of June 18, 2020 PC 4 Limited Term Permit No. XP2021-022 PC 5 Code Enforcement Memorandum PC 6 Police Department Data PC 7 Applicant’s Statement PC 8 Approved Project Plans 12 Attachment No. PC 1 Resolution No. PC2020-021 13 INTENTIONALLY BLANK PAGE14 RESOLUTION NO. PC2020-021 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING CONDITIONAL USE PERMIT NO. UP2017-034 AND COASTAL DEVELOPMENT PERMIT NO. CD2019-054 TO ALLOW THE CONTINUATION OF HISTORICAL PARKING WAIVERS, MODIFY HOURS OF OPERATION, REMOVE RESTRICTIONS REGARDING ALLOWABLE NET PUBLIC AREA DURING THE DAYTIME, AND MERGE WITH ADJACENT RESTAURANT SPACE AT THE PROPERTY LOCATED AT 110 AND 114 MCFADDEN PLACE (PA2017-255) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Baja Sharkeez (“Applicant”) and Michael Fazzi (“Owner”) with respect to property located at 110 and 114 McFadden Square, and legally described as Parcel 1 of Block 128 of Resubdivision 493 (respectively referred to as “110 McFadden” and “114 McFadden” and collectively referred to as “Property”), requesting approval of a conditional use permit, coastal development permit, and a continuation of historical parking waivers. 2. Baja Sharkeez restaurant is located at 114 McFadden. The former Sol Grill restaurant is located in a vacant tenant space attached and adjacent to 110 McFadden. Applicant proposes the following changes to 110 McFadden and 114 McFadden: a. Remodel the 110 McFadden restaurant space to modernize the building and create an attached dining room to serve 114 McFadden; b. Install a retractable roof over the 110 McFadden space and open-air patio areas; c. Remove existing restriction regarding maximum allowable net public area during the day (prior to 9 p.m.) at 114 McFadden to allow full use of the space; d. Modify the opening hour for 110 McFadden and 114 McFadden from 11:00 a.m. to 9:00 a.m.; e. No modification to the closing hour for 110 McFadden which is 11:00 p.m.; f. Modify the closing hour for 114 McFadden from 2:00 a.m. to 1:30 a.m. to match the existing Alcoholic Beverage Control (“ABC”) license conditions; g. Modify the existing 110 McFadden ABC license from a Type 41 On- Sale Beer and Wine Eating Place, to a Type 47 On-Sale General – Eating Place to match the existing ABC License at 114 McFadden; and h. Restripe the onsite parking lot in the rear to retain the existing ten (10) parking spaces. Any existing unpermitted encroachments or storage areas in the parking lot would be removed prior to implementation of the project and remain clear for vehicle parking (collectively the “Project”). 15 Planning Commission Resolution No. PC2020-021 Page 2 of 25 01-25-19 3. The Property is designated Mixed-Use Water 2 (MU-W2) by the City of Newport Beach General Plan (“General Plan”) Land Use Element and is located within the Mixed-Use Water (MU-W2) Zoning District. 4. The Property is located within the coastal zone. The City of Newport Beach Local Coast Program Coastal Land Use Plan category is Mixed Use Water (MU-W) and it is located within the Mixed-Use Water Related (MU-W2) Coastal Zoning District. 5. A telephonic public hearing was held on June 18, 2020, in the Council Chambers at 100 Civic Center Drive, Newport Beach, California, due to the Declaration of a State of Emergency and Proclamation of Local Emergency related to COVID-19. A notice of time, place and purpose of the public hearing was given in accordance with California Government Code Section 54950 et seq. (“Ralph M. Brown Act”), Chapter 20.62 and Chapter 21.62 of the Newport Beach Municipal Code (“NBMC”). Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This Project is exempt from the California Environmental Quality Act (“CEQA”) pursuant to Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. 2. The Class 1 exemption allows interior or exterior alterations involving interior partitions, plumbing and electrical conveyances. The Class 1 exemption includes the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use. The Project includes the installation of a door between the two restaurant spaces and a remodel of 110 McFadden to create a retractable roof, a patio with windows, as well as interior improvements and operational adjustments related to business hours and alcoholic beverage service. No new floor area is proposed. The Project also requires improvements to install a sprinkler system for both spaces. SECTION 3. REQUIRED FINDINGS. Alcohol Sales In accordance with Subsection 20.48.030(C)(3) (Alcohol Sales) of the NBMC, the following findings and facts in support of such findings are set forth: Finding: A. The use is consistent with the purpose and intent of Section 20.48.030 (Alcohol Sales) of the Zoning Code. 16 Planning Commission Resolution No. PC2020-021 Page 3 of 25 01-25-19 Facts in Support of Finding: In finding that the Project is consistent with Section 20.48.030 of the NBMC, the following criteria must be considered: i. The crime rate in the reporting district and adjacent reporting districts as compared to other areas in the City. 1. The Property is located in Reporting District 15 (“RD 15”). The Newport Beach Police Department is required to report offenses of criminal homicide, forcible rape, robbery, aggravated assault, burglary, larceny, theft, and motor vehicle theft (all Part I crimes), combined with all arrests for other crimes, both felonies and misdemeanors (except traffic citations) to the ABC. RD 15 is the highest crime area in Newport Beach. This reporting district is reported to ABC as a high crime area as compared to other reporting districts in the City. The RD’s Crime Count is 614, which is 357 percent over the City-wide crime count average of 140. The higher crime rate is largely due to the number of visitors to the Balboa Peninsula, the high concentration of restaurants, and the high ratio of non-residential to residential uses clustered in the commercial and mixed-use districts. The McFadden Square area has historically been a business and recreation hub for residents and tourists, drawing a large number of visitors year-round but particularly in the summer months. 2. Since RD 15 has a 20 percent greater number of reported crimes than the average number of reported crimes as determined from all crime reporting districts within the City, the area is found to have undue concentration. In comparison, neighboring RD 13 (8th Street to 20th Street) is 23 percent above the City-wide average, RD 12 (B Street to 8th Street) is 9 percent above, and RD 16 (37th Street to 54th Street) is 91 percent above. Of the 38 RDs in Newport Beach, 11 are reported to ABC as high crime areas for 2019. 3. While the area does have a high concentration of alcohol licenses, both establishments are approved for alcoholic beverage service and historically have held a valid ABC license. Therefore, the Project will not result in any increase in the number of alcohol licenses. The new portion of the restaurant (110 McFadden) would keep the location’s existing closing hour of 11 p.m. daily. Therefore, there is not an increase in area used during late hours (after 11 p.m.). The new space will enhance the dining experience without increasing allowed occupancy, therefore not further contributing to the burden on police services during late night hours. The service of alcoholic beverages provides menu options for customers and potentially enhances the economic viability of the business, while the Conditional Use Permit (“CUP”) and Operator License will provide greater enforcement options. 4. The Newport Beach Police Department (“NBPD”) has reviewed the proposal and has no objection to the Project, subject to appropriate conditions of approval. The operation of the establishment includes the approved floor plan, business hours that are more restrictive at night than the current hours identified in the use permit, an improved security plan, and the requirement to obtain an operator license. 17 Planning Commission Resolution No. PC2020-021 Page 4 of 25 01-25-19 Additionally, the updated use permit will allow the ABC Conditions and City’s use permit conditions to work in concert, where they currently conflict in some cases. The Operator License provides an additional tool for the NBPD to control the use, especially should objectionable activities occur at the site. ii. The numbers of alcohol-related calls for service, crimes, or arrests in the reporting district and in adjacent reporting districts. 1. The highest volume crime in this area is simple assault, which may be indicative of an overconsumption of alcohol. The highest volume arrest in the area is Public Intoxication. DUI, Public Intoxication, and liquor law violations make up 32 percent of arrests in this reporting district. In comparison, the figure for neighboring RD 13 is 26 percent, RD 12 is 28 percent, and RD 16 is 29 percent. 2. RD 15 has a higher number of arrests recorded in 2019, compared to adjacent reporting districts. From January 1, 2019, through December 31, 2019, the NBPD reported 505 arrests in RD 15. Of those, 27 were Part I arrests. There were eight (8) arrests at this Property; however, not every arrest was related to the business and may have been related to a dispatch event in the McFadden Square vicinity. Of the eight (8) arrests, two (2) were Part I Crime Arrests and six were Part II Crime Arrests. These statistics include both properties located at 110 McFadden and 114 McFadden. 3. The NBPD reviewed the application and does not anticipate any significant increase in crime or alcohol-related incidents with the approval of this application subject to the proposed conditions of approval, which include more restrictive hours of operation at night and prohibits live entertainment and dancing. iii. The proximity of the establishment to residential zoning districts, day care centers, hospitals, park and recreation facilities, places of worship, schools, other similar uses, and any uses that attract minors. 1. The Project is located in a mixed-use zoning district which allows for residential uses when intermixed with nonresidential uses. The nearest residential zoning district and associated residential units are located approximately 50 feet west of the Property across Court Avenue. The existing and proposed front patios as well as the entrances to the business are oriented away from the residences. The existing residential units face the on-site parking lot in the rear of the building. 2. The nearest recreational facilities, the beach and Newport Pier, are located approximately 200 feet to the southwest of the Property. The nearest church, Our Lady of Mount Carmel Church, is located approximately 0.5 miles to the east of the subject property along West Balboa Boulevard. The nearest school, Newport Elementary School, is located 0.7 miles to the east of the subject property along West Balboa Boulevard. The nearest daycare center, Children’s Center by the Sea, is approximately 0.5 miles to the east along West Balboa Boulevard. The Project use is surrounded by other commercial, retail, and office uses on the ground level. 18 Planning Commission Resolution No. PC2020-021 Page 5 of 25 01-25-19 3. The Balboa Peninsula is generally characterized by a high number of visitors, in which commercial and residential zoning districts are located in close proximity to one another and eating and drinking establishments with alcohol service are common. The CUP conditions of approval that eliminate live entertainment and dancing, in conjunction with Operator License conditions of approval will help minimize nuisances that the establishment could have to surrounding uses. This will help to ensure that the use remains compatible with the surrounding community. iv. The proximity to other establishments selling alcoholic beverages for either off-site or on- site consumption. 1. The subject census tract has an approximate population of 5,726 residents with 91 active alcohol licenses, which equates to a per capita ratio of one (1) license for every 63 residents. Per the Business and Professions code, we compare this per capita ratio to Orange County’s on-sale per capita ratio of one (1) license for every 467 residents. This location meets the legal criteria for undue concentration. 2. The per capita ratio of one license for every 63 residents is higher than all adjacent Census Tracts and the average City-wide ratio. This is due to the higher concentration of commercial land uses, many of them visitor-serving, in McFadden Square, Lido Marina Village and Cannery Village, and lower number of residential population in the RD 15 area. Nearby establishments selling alcohol include the Taco Bell Cantina, Stag Bar, Dory Deli, Blue Beet, Beach Ball, Blackie’s and several others located in the McFadden Square area. 3. While the license-to-resident ratio is higher than average and the Property is located in close proximity to other establishments selling alcoholic beverages, the physical and operational characteristics of the establishment would make the continuation of alcoholic beverage sales appropriate at this location. v. Whether or not the proposed amendment will resolve any current objectionable conditions. 1. No objectionable conditions are presently occurring at the Property. 2. The existing use permit for 114 McFadden has not been updated since 1985, and the conditions of approval are antiquated. Further, the existing permit conditions do not reflect restrictions identified in the conditions of approval for ABC’s Type 47 License. The most notable discrepancies between the ABC license and the current CUP are: 1) the ABC license prohibits live entertainment whereas the CUP does not; and 2) the ABC license requires the establishment to cease serving and allowing patrons to consume alcohol at 1:30 a.m. whereas the CUP does not. The ABC license conditions also allow the business to operate starting at 9 a.m. where the CUP allows operations starting at 11 a.m. This use permit includes the ABC conditions of approval so that both documents work in unison, making compliance less confusing and easier to accomplish for the business owner and employees. 19 Planning Commission Resolution No. PC2020-021 Page 6 of 25 01-25-19 3. A restaurant and bar have been operating at the Property since the early 1970s. The building has been remodeled several times to accommodate different tenants. As part of the Project, the building will be updated to meet current building and safety code requirements including the installation of a fire sprinkler system. 4. All owners, managers, and employees selling alcohol will be required to complete a certified training program in responsible methods and skills for selling alcoholic beverages within 60 days of hire (or for existing staff, within 60 days of approval of this use permit). Approval of this application will require the operator to obtain an Operator License pursuant to Chapter 5.25 (Operator License for Establishments Offering Alcoholic Beverages for On-Site Consumption in Combination with Late Hours, Entertainment, and/or Dance) of the NBMC. The Operator License will provide enhanced tools to control noise, loitering, litter, disorderly conduct, parking/circulation and other potential disturbances that could result from the use, and will provide the PD with means to modify, suspend, or revoke the operator’s ability to maintain late-hour operations. Conditional Use Permit In accordance with Section 20.52.020(F) (Use Permit, Required Findings) of the NBMC, the following findings and facts in support of such findings are set forth: Finding: B. The use is consistent with the General Plan and any applicable specific plan. Facts in Support of Finding: 1. The General Plan land use designation for this site is Mixed-Use Water 2 (MU-W2). The MU-W2 designation applies to waterfront properties in which marine-related uses may be intermixed with general commercial, visitor-serving commercial, and residential dwelling units on the upper floors. The existing eating and drinking establishments with alcohol service and late hours are allowed uses. Such uses can be expected to be found in this area and are complementary to the surrounding commercial and residential uses. 2. The existing building includes both the 110 McFadden and 114 McFadden tenant spaces on a single parcel. The Project currently complies with the maximum floor area ratio allowed for the site and will not result in an increase in the floor area ratio; therefore, it is consistent with the Land Use Element development limitations. 3. The Project remodel and operational changes are for a use that is consistent with General Plan Land Use Policy LU6.8.2 (Component Districts), which emphasizes that McFadden Square should be utilized as one of the primary activity centers within the City. The modifications will allow residents and visitors to enjoy the existing eating and drinking establishment as a visitor- and local-serving convenience. 4. The Property is not part of a specific plan area. 20 Planning Commission Resolution No. PC2020-021 Page 7 of 25 01-25-19 Finding: C. The use is allowed within the applicable zoning district and complies with all other applicable provisions of the Zoning Code and the Municipal Code. Facts in Support of Finding: 1. The Property is located in the Mixed-Use Water Related (MU-W2) Zoning District. The MU-W2 designation applies to waterfront properties in which marine-related uses may be intermixed with general commercial, visitor-serving commercial and residential dwelling units on the upper floors. The existing and proposed use of the site as a restaurant is a permitted use in the zoning district with approval of a conditional use permit. 2. Restaurants have been operating at the Property since the 1970s. The applicant requests increased hours of operation in the morning and full use of the dining area during the daytime. The Project also includes a remodel to merge the two (2) tenant spaces to allow operation as a single restaurant. The Project complies with all development standards and no deviations are requested with the exception of the historical parking waivers. 3. The McFadden Square area is adequately served by the two (2) adjacent municipal lots throughout most of the year and the close proximity to multiple commercial uses and coastal resources will result in shared trips to the project site area. In keeping with historical conditions, walk-up and pass-by patron traffic is common in this area of the peninsula. Visitors to this area are typically going to the beach or bay and have multiple destinations on the peninsula, such as recreation, shopping, and dining, especially during the summer season. 4. Under current parking requirements for a food service, eating and drinking establishment, parking is required at a rate of one (1) parking space per 30 to 50 square feet (sf) of net public area (NPA), as determined by a use permit. In this case, a parking rate of one space per 50 sf of NPA is appropriate for the proposed use based on several physical design and operational characteristics. Ride sharing is common for businesses that serve alcohol, resulting in fewer parked cars. The proposed conditions of approval would prohibit live entertainment and dancing, which also lowers the demand. The restaurant would not be considered a destination use for drivers. Lastly, local residents and visitors in the area will also walk or bike to the restaurant. 5. Historically, required parking spaces for 110 McFadden and 114 McFadden have been reduced or waived as part of prior use permit approvals. Due to changes in the methodology for calculating required parking spaces since the 70s and 80s, the Project will result in an overall net decrease in parking spaces required by Title 20 and Title 21 to serve the Property. The Applicant is requesting a continuation of historical parking waivers for the Property and will provide 10 onsite spaces as well the payment of 22 in- lieu parking fees as authorized by Sections 20.40.130 and 21.40.130 of the NBMC. The 21 Planning Commission Resolution No. PC2020-021 Page 8 of 25 01-25-19 Property also has a non-conforming parking credit of four (4) spaces based on the original construction of the building in the 1960s (prior to off-street parking requirements). The current NBMC requires nine (9) spaces for 110 McFadden and 28 spaces for 114 McFadden, for a total requirement of 37 spaces, where 36 spaces are provided. Prior use permits reduced required parking by a total of 22 spaces, where current standards only require a reduction of one (1) space, resulting in a net reduction of 21 spaces. Therefore, the proposed expansion of net public area during the daytime at 114 McFadden is not expected to noticeably change the parking demand in the McFadden Square area. 6. The Project has been conditioned to provide a trash enclosure in the rear parking lot, outside of required drive aisles. The existing door swing of the trash enclosure will be modified to no longer encroach into the drive aisle. The trash enclosure will screen trash from Court Avenue and maintain water quality by covering the top of the dumpster. All of the existing outdoor storage and miscellaneous materials in the rear parking lot will be removed prior to building permit final inspection. Finding: D. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity. Facts in Support of Finding: 1. The operation of the eating and drinking establishment will be restricted such that alcohol service, sales, and consumption would end at 1:30 a.m., whereas it was previously allowed to operate until 2 a.m. without any restrictions. The closing hour is compatible with other late-night eating and drinking establishments in the area. The NBPD has reviewed the Project and is supportive of the reduced late hour operation and an improved security plan. 2. As the City does not experience significant alcohol related crime during the morning hours, the additional two (2) hours of breakfast service would be negligible. There are several eating and drinking establishments in the vicinity that serve breakfast such as Dory Deli, Seaside Donuts Bakery, Newport Coffee Company, and Banzai Bowls. The additional morning hours would be consistent with other local businesses and serve residents and visitors. 3. The existing use permit for 114 McFadden restricts net public area during the daytime (prior to 9 p.m.) primarily due to parking concerns. The proposed increase in net public area (NPA) during the daytime from 960 to 1,368 square feet would result in a minimal increase of 408 square feet. The increased NPA would have a neglible impact on parking conditions, as the number of spaces required is lower than previously calculated due to methodological changes in the NBMC. The proposed NPA is located within the existing building footprint and would not result in an increase in overall gross floor area, thereby appearing the same from adjacent uses and maintaining compatability. 22 Planning Commission Resolution No. PC2020-021 Page 9 of 25 01-25-19 4. The existing floor plan for 114 McFadden is not changing as a result of the Project. 110 McFadden would be remodeled to create an open-air environment for dining to complement the existing 114 McFadden restaurant. The prior use permit allowed live entertainment and dancing, whereas these activities would be prohibited by the proposed use permit conditions of approval. 5. The Project includes conditions of approval to ensure that potential conflicts are minimized to the greatest extent possible. Although the eating and drinking establishment is located approximately 50 feet from residential units across Court Avenue to the southwest, the building is oriented toward McFadden Square and the municipal parking lots. The 110 McFadden building will be remodeled to include a retractable roof and open-air environment, where the existing building does not have any openings along Court Avenue. To reduce potential noise in the vicinity, all patios, windows, and the open roof shall be completely closed by 9 p.m., daily. Due to weather considerations, it is likely that the windows and doors will be closed in the colder seasons and in the evenings, reducing the likelihood of issues related to sound transmission. ABC conditions currently require that all side/rear windows and doors to be kept closed at all times except for the egress/ingress of employees. ABC has not reviewed the latest design yet that includes a retractable roof and side windows along Court Avenue. Therefore, a condition of approval is included requiring consistency with ABC conditions of approval if they are more restrictive than the condition of approval in this resolution. The Applicant is also required to control trash and litter around the Property. 6. The operational conditions of approval recommended by the Newport Beach Police Department relative to the sale of alcoholic beverages, including an operator license, will help ensure compatibility with the surrounding uses and minimize alcohol related impacts. The Project has been conditioned to ensure the welfare of the surrounding community. The existing use permit was approved in the 1980s, and the conditions of approval do not align with the associated ABC License. Modernizing and updating the existing use permit conditions of approval allows for easier implementation by employees of the business and enforcement by the Newport Beach Police Department, Code Enforcement, and ABC. The Project is conditioned to prohibit the restaurant from operating as a bar, tavern, or nightclub, thereby reducing potential impacts to the neighborhood. 7. As part of the remodel, the Applicant is required to obtain Health Department approval prior to opening for business and will be required to comply with the California Building Code to ensure the safety and welfare of customers and employees within the establishment. The Project includes the construction of a passageway between 114 and 110 McFadden, and other upgrades which prompts the need for fire sprinklers and additional egress doors, thereby improving safety conditions for the subject building and surrounding area. 8. The Property is located in a relatively dense area with multiple uses within a short distance of each other. The McFadden Square area is conducive to a significant amount of walk-in patrons. The area experiences parking shortages in the daytime during the summer months, but parking is typically available during the rest of the year. Two (2) municipal parking lots and on-site parking is available in the area to accommodate the proposed use. 23 Planning Commission Resolution No. PC2020-021 Page 10 of 25 01-25-19 9. The Public Works Department and Building Division have reviewed the proposed design and configuration of parking spaces and determined the design is acceptable upon implementation of the related conditions of approval. Any future changes to the parking lot configuration would require review and approval by the Planning and Building Divisions, as well as the Public Works Department. Finding: E. The site is physically suitable in terms of design, location, shape, size, 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 Property is developed with an existing commercial building and both tenant spaces are designed for an eating and drinking establishment. The proposed design, size, location, and operating characteristics of the use are compatible with the surrounding neighborhood. The existing tenant space on the Property has historically been utilized by an eating and drinking establishment since the 1970s. Prior to occupation of the space by the current tenant, Baja Sharkeez, the 114 McFadden space primarily operated as a bar with live entertainment and dancing. The 110 McFadden space has operated most recently as a restaurant and market prior to that. 2. Adequate public and emergency vehicle access, public services, and utilities are provided to the Property. Any additional improvements that are necessary to serve the use, such as reconstruction of the existing driveway, have been included as conditions of approval. 3. In conjunction with the remodel of the former Sol Grill that will connect 110 and 114 McFadden, the Applicant is required to install a fire sprinkler system throughout the combined restaurant spaces. This improvement will enhance the safety of the existing buildings and benefit the surrounding structures and area. 4. A building permit is required prior to any construction. The Project will comply with all Building, Public Works, and Fire Codes. All ordinances of the City and all conditions of approval will be complied with. Finding: F. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. 24 Planning Commission Resolution No. PC2020-021 Page 11 of 25 01-25-19 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. The operator is required to take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, and areas surrounding the subject property and adjacent properties during business hours, if directly related to the patrons of the establishment. 2. The establishment will continue to provide dining with the service of alcoholic beverages as a public convenience to the surrounding neighborhood and visitors to the area. This will continue to help revitalize the Property and provide an economic opportunity for the property owner to update the building and surrounding area, which best serve the quality of life for the surrounding visitor- and local-serving community. 3. The existing 110 McFadden tenant space is currently vacant and would be remodeled as part of the Project. The Project would include updates to meet current building code and fire code standards including the provision of sprinklers and compliant egress doors to protect patrons and the surrounding area. Off-Street Parking Reduction Both 110 McFadden and 114 McFadden have been granted historical waivers of parking spaces. In accordance with NBMC Section 20.40.110 (Off-Site Parking) and 21.40.110 (Adjustments to Off-Street Parking Requirements), off-street parking requirements may be reduced with the approval of a conditional use permit in compliance with Section 20.52.020 (Conditional Use Permits and Minor Use Permits) as follows: Finding: G. 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 Facts in Support of Finding: 1. Historically, parking rates for 110 McFadden were based on the gross floor area of the restaurant because it was primarily a take-out use. The existing use permit (UP3034A) requires a parking rate of one (1) space for every 50 square feet of gross floor area plus one (1) space for each employee. The resulting requirement was 26 parking spaces. The restaurant provided four (4) parking spaces via in-lieu parking fees, the remaining 22 parking spaces were waived by the Planning Commission. 2. The Property also includes an on-site parking lot containing 10 parking spaces, which has mainly served employees of the business. However, the 110 and 114 McFadden tenants both utilize this lot, and the spaces appear to have “double-counted” under the 25 Planning Commission Resolution No. PC2020-021 Page 12 of 25 01-25-19 existing use permits (except 11 p.m. to 2 a.m. when 110 McFadden was closed). In an effort to accurately analyze parking for the future scenario, the 10 on-site parking spaces are only counted for the purpose of serving 114 McFadden. 3. Under proposed conditions, the remodeled 110 McFadden space will contain a net public area of 445 square feet. Using a parking rate of one space per 50 square feet of NPA per today’s standards, the resulting parking demand is nine (9) parking spaces. With the continued payment of four (4) in-lieu parking fees, the resulting waiver for the use would be five (5) spaces. Therefore, the proposed use would require a continued waiver of five (5) spaces versus a waiver of 22 spaces previously approved. The result is a net reduction in of 17 required parking spaces for this portion of the project. Thus, no additional parking is required as part of the remodel and merger of the 110 McFadden space with the 114 McFadden space. 4. The existing use permit for the 114 McFadden space (UP1783D) includes separate parking requirements for “daytime” (11 a.m. to 9 p.m.) and “nighttime” (9 p.m. to close) operations. The use permit restricts daytime operations, when demand in the area is highest in summer. The daytime parking rate identified in the use permit is one (1) space per 40 square feet of net public area. The NPA during the daytime was restricted to 960 square feet (sf) resulting in a demand of 24 parking spaces. At the time, this daytime restriction was simpler and more realistic to enforce, because the business at that time “Jose Murphy’s” was more of a nightclub/bar that mainly operated at night. The design included a platform for live entertainment and dancing that was only used utilized after 9 p.m., so the space and timing restriction were appropriate for that use. Applicant is a full-service restaurant with alcohol (Type 47 ABC License) and there is no clear physical division to restrict the space during the daytime. This creates regulatory challenges for City staff as well as employees of the business. 5. The nighttime parking requirement for 114 McFadden was higher per UP1783D (approved in 1985) as the NPA increased from 960 sf during the day to approximately 1,421 sf after 9:00 pm. The parking requirement was also higher, at a rate of one (1) space per 35 sf of NPA for the bar/lounge area and one (1) space per for 40 sf for the dining area. According to the use permit this resulted in a requirement of 37 spaces. The Property provided 10 parking spaces on-site in the rear parking lot, 18 spaces via in-lieu parking fees for the public lot, and five (5) spaces via an informal offsite agreement at Playa Realty (102 McFadden). The Property also had a non-conforming parking credit of four (4) spaces, which was grandfathered from original construction of the building in the 1960’s (prior to the requirement for on-site parking). Therefore, through the methods identified above, the Project met the requirement for 37 parking spaces. 6. The conditions of approval prohibit dancing and live entertainment which would reduce the parking demand for the Property from the existing use permit, particularly at night. A uniform parking rate of one (1) space per 50 square feet (sf) of NPA is appropriate for the business during the daytime and nighttime. The proposed NPA for the 114 McFadden space is 1,368 sf resulting in a parking requirement of 28 parking spaces. Therefore, the parking requirement increases by four (4) spaces during the daytime and is reduced by nine (9) spaces at night. The 28 spaces will be provided via the 10 on-site 26 Planning Commission Resolution No. PC2020-021 Page 13 of 25 01-25-19 spaces and 18 in-lieu parking fees. The Project would also continue to receive the four (4) space nonconforming parking credit which results in the provision of 32 parking spaces for the 114 McFadden building where only 28 spaces are required, resulting in a surplus of four (4) spaces. 7. The 110 McFadden and 114 McFadden spaces will be combined as part of the Project and the parking will now be regulated in one consolidated use permit. The result is a combined requirement of 37 parking spaces and the provision of 36 parking spaces. The 36 parking spaces shall be provided via 10 onsite spaces, 22 in-lieu fees, and a four (4) space nonconforming credit. The remaining one (1) parking space would be waived as a continuation of historical parking reductions. 8. It is most likely that the employees and frequent patrons of the business will utilize the parking spaces to the rear of the Property since they are familiar with the site and how to access the parking lot. This will reduce the number of employees utilizing the public lots. 9. The continuation of historical parking reductions remains appropriate for the restaurant, even with the use of the full dining area during the daytime because the overall parking demand for both restaurants has been reduced. The original use permits required a waiver of 22 spaces, where the current use permit requires the wavier of one space. In addition, in keeping with historical conditions, walk-up and bicycle traffic is common in this area of the peninsula. Visitors to this area are typically going to the beach or bay and have multiple destinations on the peninsula, such as recreation, shopping, and dining. The 137-parking-space McFadden Square municipal parking lot is located adjacent to the project site. Also located within walking distance is the Newport Pier municipal parking lot which contains approximately 260 parking spaces. The parking lots have proven to be sufficient to support the existing restaurant and nearby businesses. 10. Furthermore, by 9:00 p.m., many of the surrounding businesses close, and at 10:00 p.m. the beach is closed to the public thereby creating a surplus of public parking spaces. The closure of these attractions coincides with the busiest time of the week for Baja Sharkeez, which is weekend nights. Additionally, ride sharing is common for businesses that serve alcohol. Coastal Development Permit In accordance with Section 21.52.015 (Coastal Development Permits, Findings and Decision) of the Newport Beach Municipal Code, the following findings and facts in support of such findings are set forth: Finding: H. Conforms to all applicable sections of the certified Local Coastal Program. 27 Planning Commission Resolution No. PC2020-021 Page 14 of 25 01-25-19 Facts in Support of Finding: 1. The Project requires a coastal development permit due to the potential intensification of use at the site and the continuation of historical parking waivers. The Project complies with applicable development standards including, but not limited to, floor area limitation, setbacks, and height. 2. The structure complies with the required setbacks, which are zero (0) feet along all property lines. 3. The maximum floor area ratio is 0.5 (3,961 square feet). The remodeled building has a gross floor area of approximately 3,629 square feet. 4. The proposed retractable roof element is approximately 17 feet 6 inches maximum and the existing roof for 114 McFadden is approximately 19 feet from the finished floor elevation of 9.01 feet North American Vertical Datum of 1988 (NAVD88), which complies with the maximum height limitation of 26 feet for a flat roof. 5. The Project requires a waiver of (1) one parking space, where historical use permits authorized a waiver of 22 parking spaces. Therefore, any potential impacts related to the increase in net public area during the daytime would be negligible. Similarly, the additional hours of operation requested in the morning (from 9 a.m.-11 a.m.) are not peak hours for public access. 6. The neighborhood is predominantly developed with commercial and mixed-use structures with scattered multi-family zoning to the southwest. The proposed design, bulk, and scale for the remodel is consistent with the existing neighborhood pattern of development. 7. The Project site is separated from the bay (the nearest body of water) by Court Avenue, McFadden Square, commercial buildings, and an approximately 200-foot wide beach. The finished floor elevation of the first floor of the structure is 9.01 feet (NAVD88), which complies with the minimum 9-foot (NAVD88) elevation standard for new structures. The identified distances from the coastal hazard areas will help to ensure the Project is reasonably safe for the economic life of the structure. 8. The Property is located in an area known for the potential of seismic activity and liquefaction. All projects are required to comply with the California Building Code (“CBC”) and Building Division standards and policies. Geotechnical investigations specifically addressing liquefaction are required to be reviewed and approved prior to the issuance of building permits. Permit issuance is also contingent on the inclusion of design mitigation identified in the investigations. Construction plans are reviewed for compliance with approved investigations and CBC prior to building permit issuance. 9. The Property is located within 515 feet of coastal waters. A Construction Erosion Control Plan was provided to implement temporary Best Management Practices (BMPs) during construction to minimize erosion and sedimentation and to minimize pollution of runoff and 28 Planning Commission Resolution No. PC2020-021 Page 15 of 25 01-25-19 coastal waters derived by construction chemicals and materials. The Project design also addresses water quality through the inclusion of a post-construction drainage system that includes drainage and percolation features designed to retain dry weather and minor rain event runoff on-site. Any water not retained on-site is directed to the City’s storm drain system. 10. The Project is not located adjacent to a coastal view road or coastal viewpoint as identified in the Coastal Land Use Plan. The nearest coastal viewpoint is on the end of the Newport Pier and not visible from the site due to distance and an intervening building that obstructs views. The Project is located adjacent to McFadden Square, which is accessible to the public and provides opportunities to view and access the beach as well as other amenities. As currently developed, the existing restaurant building and other businesses are located within the view shed of the beach and shoreline. However, the proposed commercial remodel complies with all applicable Local Coastal Program (“LCP”) development standards and maintains a building envelope consistent with the existing neighborhood pattern of development. Because the existing building envelope will be maintained, any public views of the beach or ocean from the subject site would remain the same. Additionally, the project does not contain any unique features that could degrade the visual quality of the coastal zone. 11. The proposed remodel at 110 McFadden would include the removal of the existing solid wall along Court Avenue, which would be replaced with a patio area, glass barriers, and windows. The Project would modernize the existing, vacant building and revitalize the local neighborhood. The building height would remain approximately the same as the existing flat roof and any proposed rooftop equipment would be screened from view of pedestrians and motorists in the vicinity. Therefore, the Project does not have the potential to degrade the visual quality of the Coastal Zone or result in significant adverse impacts to existing public views. Finding: I. Conforms with the public access and public recreation policies of Chapter 3 of the Coastal Act if the project is located between the nearest public road and the sea or shoreline of any body of water located within the coastal zone. Fact in Support of Finding: 1. The Project is located between the nearest public road and the sea or shoreline. Implementation Plan Section 21.30A.040 requires that the provision of public access bear a reasonable relationship between the requirement and the project’s impact and be proportional to the impact. In this case, the Project remodels an existing restaurant space and modifies the existing operations. No additional parking spaces are required to serve the business as proposed. Therefore, the Project does not involve a change in land use, density or intensity that will result in increased demand on public access and recreation opportunities. Furthermore, the Project is designed and sited (appropriate height, setbacks, etc.) so as not to block or impede existing public access opportunities. The updated design would modernize the appearance of the building to help revitalize the area. 29 Planning Commission Resolution No. PC2020-021 Page 16 of 25 01-25-19 Increased hours of operation in the morning and full use of the restaurant during the daytime would serve as an amenity to residents and visitors in the area. 2. Vertical access to the beach is available adjacent to the Project within the McFadden Place plaza and Newport Pier. Lateral access is available on the beach to the west of the site. The public beach is also the start of a six (6) foot wide public sidewalk providing lateral access and views of the ocean. The Project does not include any features that would obstruct access along these routes. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach hereby finds this Project is categorically exempt from the California Environmental Quality Act pursuant to Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. 2. The Planning Commission of the City of Newport Beach hereby approves Conditional Use Permit No. UP2017-034, and Coastal Development Permit No. CD2019-054 subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. 3. This action shall become final and effective 14 days following the date this Resolution was adopted unless within such time an appeal or call for review is filed with the an appeal is filed with the City Clerk in accordance with the provisions of Title 20 Planning and Zoning and Title 21 Local Coastal Implementation Plan, of the Newport Beach Municipal Code. Final action taken by the City on the Coastal Development Permit may be appealed to the Coastal Commission in compliance with Section 21.64.035 of the City’s certified LCP and Title 14 California Code of Regulations, Sections 13111 through 13120, and Section 30603 of the Coastal Act. 4. This resolution supersedes Planning Commission Use Permit No. 3034 (Amended) and Use Permit No. 1783 (Amended) which upon vesting of the rights authorized by these applications shall become null and void. PASSED, APPROVED, AND ADOPTED THIS 18th DAY OF JUNE, 2020. AYES: Ellmore, Klaustermeier, Kleiman, Koetting, Lowrey, and Weigand NOES: ABSTAIN: ABSENT: Rosene 30 01-25-19 Planning Commission Resolution No. PC2020-021 Page 17 of 25 31 Planning Commission Resolution No. PC2020-021 Page 18 of 25 01-25-19 EXHIBIT “A” CONDITIONS OF APPROVAL (Project-specific conditions are in italics) Planning Division 1. The development shall be in substantial conformance with the approved site plan, floor plans and building elevations stamped and dated with the date of this approval (except as modified by applicable conditions of approval). 2. Sales, service, and consumption of alcoholic beverages between the hours of 9 am and 11 am shall only be allowed on weekends (Friday through Sunday) and certain holidays (New Year’s Day, Saint Patrick’s Day, Cinco de Mayo, Memorial Day, 4th of July, and Labor Day), and shall occur only in conjunction with the purchase of food from the regular menu. 3. Sales, service, and consumption of alcoholic beverages in the original space (114 McFadden Place) shall be permitted only between the hours of 9 a.m. and 1:30 a.m. 4. Sales, service, and consumption of alcoholic beverages in the newly expanded restaurant space (110 McFadden Place) shall be permitted to 11 p.m. only. 5. Sales, service and consumption of food and alcoholic beverages shall be permitted in the patio area only between the hours of 9 a.m. and 9 p.m. each day of the week. 6. Free refills and/or “all you can drink” deals on alcohol shall be prohibited. 7. The Planning Commission shall review this Conditional Use Permit within one year of the commencement of operations within the expanded space (110 McFadden), with a focus on alcohol service between the hours of 9 am and 11 am. 8. The rear and side doors and windows shall be kept closed at all times during the operation of the premises, except to allow entry, during emergencies and/or to permit deliveries. Said doors not to consist solely of a screen door or ventilated screen door. Prior to 9 p.m., this condition shall not apply to side windows and the retractable roof if approved by ABC. 9. Smoking shall be prohibited in the newly expanded restaurant space (110 McFadden). 10. The relocation of tables and chairs from the original space (114 McFadden) to the newly expanded space (110 McFadden) shall be prohibited. 11. The Project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 32 Planning Commission Resolution No. PC2020-021 Page 19 of 25 01-25-19 12. 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. 13. Prior to final building permit inspection, any existing outdoor storage within the onsite parking lot shall be removed to the satisfaction of the Planning Division. 14. All proposed signs shall be in conformance with provisions of Chapter 20.42 (Signs) of the Newport Beach Municipal Code (“NBMC”). 15. Use Permit No. UP2017-034 and Coastal Development Permit No. CD2019-054 shall expire unless exercised within 24 months from the date of approval as specified in Section 20.91.050 of the Newport Beach Municipal Code, unless an extension is otherwise granted. 16. This Use Permit and Coastal Development Permit may be modified or revoked by the Planning Commission should they determine that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the Property is operated or maintained so as to constitute a public nuisance. 17. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to this Use Permit and/or Coastal Development Permit or the processing of a new Use Permit and/or Coastal Development. 18. A copy of the Resolution, including conditions of approval Exhibit “A” shall be incorporated into the Building Division and field sets of plans prior to issuance of the building permits. 19. Prior to the issuance of a building permit, the applicant shall submit to the Planning Division an additional copy of the approved architectural plans for inclusion in the project file. The plans shall be identical to those approved by all City departments for building permit issuance. The approved copy shall include architectural sheets only and shall be reduced in size to 11 inches by 17 inches. The plans shall accurately depict the elements approved by this Use Permit and Coastal Development Permit and shall highlight the approved elements such that they are readily discernible from other elements of the plans. 20. 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. 33 Planning Commission Resolution No. PC2020-021 Page 20 of 25 01-25-19 21. Prior to the issuance of a building permit, the Applicant shall pay any unpaid administrative costs associated with the processing of this application to the Planning Division. 22. All noise generated by the Project shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the NBMC. The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher: Between the hours of 7:00AM and 10:00PM Between the hours of 10:00PM and 7:00AM Location Interior Exterior Interior Exterior Residential Property 45dBA 55dBA 40dBA 50dBA Residential Property located within 100 feet of a commercial property 45dBA 60dBA 45dBA 50dBA Mixed Use Property 45dBA 60dBA 45dBA 50dBA Commercial Property N/A 65dBA N/A 60dBA 23. 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. 24. Construction activities shall comply with Section 10.28.040 of the NBMC, which restricts hours of noise-generating construction activities that produce noise to between the hours of 7 a.m. and 6:30 p.m., Monday through Friday. Noise-generating construction activities are not allowed on Saturdays, Sundays or Holidays. 25. 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. 26. 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. 27. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the Property. 28. The Applicant shall ensure that the trash dumpsters and/or receptacles are maintained to control odors. This may include the provision of either fully self-contained dumpsters or periodic steam cleaning of the dumpsters, if deemed necessary by the Planning Division. Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14, including all future amendments (including Water Quality related requirements). 29. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10 p.m. and 7 a.m. on weekdays and Saturdays and between the hours of 10 p.m. and 34 Planning Commission Resolution No. PC2020-021 Page 21 of 25 01-25-19 9 a.m. on Sundays and Federal holidays, unless otherwise approved by the Director of Community Development, and may require an amendment to this Use Permit. 30. 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. 31. 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, include any form of on-site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. 32. To the fullest extent permitted by law, Applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney’s fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City’s approval of Baja Sharkeez Remodel Project including, but not limited to, UP2017-034, CDP2019-054, and OL 2017-006 (PA2017-255). This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant, City, and/or the parties initiating or bringing such proceeding. The Applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The Applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. Life Safety Services (Fire) Division 33. As per California Building Code (CBC) Section 407.1 2016 California Existing Building Code, no change shall be made in the use or occupancy of any building unless such building is made to comply with the requirements of the CBC for the use or occupancy. Changes in use or occupancy in a building or portion thereof shall be such that the existing building is no less compliant with the provisions of this code than the existing building or structure was prior to the change. Subject to the approval of the building official, the use or occupancy of existing buildings shall be permitted to be changed and the building is allowed to be occupied for purposes in other groups without conforming to all of the requirements of this code for those groups, provided the new or proposed use is less hazardous, based on life and fire risk, than the existing use. The proposed occupancy increase places this structure in a higher life risk, thus the requirements of CBC will need to be met in order for an occupancy increase. 34. An automatic sprinkler system shall be provided for fire areas containing Group A-2 occupancies and intervening floors of the building where the fire area has an occupant load of 100 or more per California Fire Code (CFC) Section 903.2.1.2. Due to the increase of floor area, the occupancy will need to meet current code requirements and 35 Planning Commission Resolution No. PC2020-021 Page 22 of 25 01-25-19 be required to provide fire sprinklers in the existing tenant space (114 McFadden) and the proposed space (110 McFadden). 35. Where carbon dioxide storage tanks, cylinders, piping and equipment are located indoors, rooms or areas containing carbon dioxide storage tanks, cylinders, piping and fitting and other areas where a leak of carbon dioxide can collect shall be provided with either ventilation in accordance with CFC Section 5307.5 or an emergency alarm system in accordance with CFC Section 5307.5.2. Building Division 36. The Applicant is required to obtain all applicable permits from the City’s Building Division and Fire Department. The construction plans must comply with the most recent, City- adopted version of the California Building Code. The construction plans must meet all applicable State Disabilities Access requirements. Approval from the Orange County Health Department is required prior to the issuance of a building permit. 37. Egress doors shall swing in the direction of travel due to the proposed number of occupants. 38. Total building occupancy load shall be verified prior to building permit issuance upon the submission of complete, fully dimensioned plans to the Building Division. 39. Fire sprinklers are required. Public Works Department 40. The door swing shall not project into the public right of way or the required dimensions of the parking spaces. This applies to all doors. 41. The trash enclosure gate swing shall not project into the drive aisle or parking spaces. 42. The driveway approach along the Court Avenue frontage shall be reconstructed to accommodate a minimum four-foot accessible (ADA) path across the driveway. A pedestrian easement shall be required if portions of the ADA path are on private property. 43. No private encroachments are permitted within the public right of way. Any existing encroachments shall be removed prior to permit issuance. Police Department 44. The Property shall be maintained as a bona fide restaurant and shall provide a menu containing an assortment of foods normally offered in such restaurants. At least 75% of items on the menu shall be available up until ½ hour before closing. 36 Planning Commission Resolution No. PC2020-021 Page 23 of 25 01-25-19 45. During normal business hours, at least 50 percent of the premises seating shall be prepared for food service and possess condiment dispensers with which to serve meals to the public. 46. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The license shall at all times maintain records which reflect separately the gross sale of food and gross sales of alcoholic beverages of the licensed premises. Said records shall be kept no less frequently than on a quarterly basis and shall be made available to the Newport Beach Police Department on demand. 47. No “Happy Hour” type of reduced price alcoholic beverage promotion shall be allowed after 7 p.m. each day of the week. 48. There shall be no promotional drink specials or reduced drink specials after 7 p.m. each day of the week. 49. The sale of alcoholic beverages for consumption off the premises is strictly prohibited. 50. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee(s). 51. Entertainment shall not be audible beyond the area under the control of the licensee(s). 52. The use of any amplifying system or device is prohibited on the patio and the use of any said system and/or device within the interior of the licensed premises shall not be audible on the exterior of the licensed building. 53. There shall be no live entertainment of any type, including, but not limited to live music, disc jockey or patron dancing. 54. Petitioner shall not require an admission charge or cover charge, nor shall there be a requirement to purchase a minimum number of drinks. 55. Petitioner shall not share any profits or pay any percentage or commission to a promoter or any other person, based on monies collected as a door charge, cover charge, or any other form of admission charge, including minimum drink orders, or sale of drinks. 56. No beer and/or distilled spirits shall be sold in glass bottles or glass containers larger than 12 ounces. 57. Except for table tents and menus, there shall be no exterior advertising or sign of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages or signs which are clearly visible to the exterior shall constitute a violation of this condition. 58. Licensees not exercising the privileges of their [ABC] license until after 9 p.m. are deemed not exercising the privileges of their [ABC] license in good faith and said method 37 Planning Commission Resolution No. PC2020-021 Page 24 of 25 01-25-19 of operation shall be deemed contrary to public welfare and morals and an attempt on the part of the licensee to circumvent the provisions of Section 23038 of the Business and Professions Code. For example, a location licensed to operate as a restaurant, then does not serve food. 59. No portion of the Property shall be deemed to be “private” for the purpose of dispersing alcoholic beverages to selected patrons. In no case, shall the licensee recognize any form of membership card, keys or passes which would entitle the holder entry or preferential admittance, service or exclusive use of any portion of the mentioned premises. 60. The petitioner(s) shall be responsible for maintaining free of litter the area adjacent to the premises over which they have control. 61. Any graffiti painted or marked upon the premises or on any adjacent area under the control of the licensee(s) shall be removed or painted over within 48 hours of being applied. 62. No games or contests requiring or involving the consumption of alcoholic beverages shall be allowed. 63. There shall be no dancing allowed on the Property. 64. The Applicant shall comply with all federal, state, and local laws, and all conditions of the Alcoholic Beverage License. Material violation of any of those laws or conditions in connection with the use may be cause for revocation of the use permit. 65. All owners, managers and employees must abide by all laws and conditions of the Alcoholic Beverage Control License. 66. All owners, managers and employees selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for selling alcoholic beverages within 60 days of hire. This training must be updated every three (3) years regardless of certificate expiration date. The certified program must meet the standards of the certifying/licensing body designated by the State of California. The establishment shall comply with the requirements of this section within 60 days of approval. Records of each owner’s manager’s and employee’s successful completion of the required certified training program shall be maintained on the premises and shall be presented upon request by a representative of the City of Newport Beach. 67. Strict adherence to maximum occupancy limits is required. 68. The Applicant shall maintain a security recording system with a 30-day retention and make those recording available to police upon request. 38 Planning Commission Resolution No. PC2020-021 Page 25 of 25 01-25-19 69. Management shall maintain an operational log of daily activities related to the sale and service of alcoholic beverages, as well as any additional security actions. Management shall make this log available to the Newport Beach Police Department upon request. 39 INTENTIONALLY BLANK PAGE40 Attachment No. PC 2 Planning Commission Staff Report dated June 18, 2020 (attachments omitted) 41 INTENTIONALLY BLANK PAGE42 CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT June 18, 2020 Agenda Item No. 2 SUBJECT: Baja Sharkeez Remodel (PA2017-255) ▪Conditional Use Permit No. UP2017-034 ▪Coastal Development Permit No. CD2019-054 SITE LOCATION: 110 – 114 McFadden Place APPLICANT: Baja Sharkeez OWNER: Michael Fazzi PLANNER: Liz Westmoreland, Associate Planner 949-644-3234, lwestmoreland@newportbeachca.gov PROJECT SUMMARY A conditional use permit and coastal development permit to allow modifications to an existing food service eating and drinking establishment, Baja Sharkeez, with late hours and a Type 47 (On Sale General Eating Place) Alcoholic Beverage Control license. Baja Sharkeez would expand into the adjacent restaurant at 110 McFadden (formerly Sol Grill) creating a new dining area. The 110 McFadden space is currently permitted to operate from 11:00 a.m. to 11:00 pm., daily. This space would continue to close at 11:00 p.m. consistent with existing use permit conditions, but the Applicant is requesting increased hours in the morning to serve breakfast starting at 9:00 a.m. The expanded dining area would operate with the existing Type 47 license. The 114 McFadden space is currently permitted to operate from 11:00 a.m. to 2:00 a.m., daily. Proposed hours of operation would be increased in the morning to allow breakfast service starting at 9:00 a.m. and decreased at night to close at 1:30 a.m. The existing use permit for 114 McFadden allows live entertainment and dancing, which would be eliminated if the application is approved. The project includes a continuation of historical parking waivers. The establishments currently operate under Use Permit Nos. 1783 and 3034, which would be superseded if this application is approved. Pursuant to Newport Beach Municipal Code (NBMC) 5.25, the operation as described requires the owner/operator to obtain an Operator License issued by the Chief of Police because the business includes on-sale alcohol service in conjunction with late hours (after 11:00 p.m.). 1 43 INTENTIONALLY BLANK PAGE2 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 2 RECOMMENDATION 1)Conduct a public hearing; 2)Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines, because it has no potential to have a significant effect on the environment; and 3)Adopt Resolution No. PC2020-021 approving Conditional Use Permit No. UP2017- 034 and Coastal Development Permit No. CD2019-054 (Attachment No. PC 1). VICINITY MAP GENERAL PLAN ZONING 3 45 INTENTIONALLY BLANK PAGE4 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 3 LOCATION GENERAL PLAN ZONING CURRENT USE ON-SITE Mixed Use Water 2 (MU- W2) Mixed-Use Water Related (MU-W2) Baja Sharkeez, former Sol Grill (vacant) NORTH MU-W2 MU-W2 Office, parking lot SOUTH MU-W2, Multiple Residential (RM) MU-W2, Multiple Residential (RM) Mixed use buildings, retail, restaurants, multi-family residential EAST MU-W2 MU-W2 Parking lot, multi-family residential WEST Visitor Serving Commercial (CV) Commercial Visitor- Serving (CV) McFadden Square, municipal parking lot, restaurants, visitor accommodations INTRODUCTION Project Setting and Background The subject property is located within the McFadden Square area of the Balboa Peninsula near the Newport Pier. Surrounding land uses include multi-family residential units across Court Avenue to the south; retail, coffee shop, and food service businesses with residential above to the west; McFadden Place to the north; and a small office building and parking lot to the east across the alley. The 137-parking-space McFadden Square municipal parking lot is located adjacent to the project site to the north. Also located within walking distance is the Newport Pier municipal parking lot which contains approximately 260 parking spaces. The existing structure on the subject property includes two restaurant tenant spaces, 110 and 114 McFadden Place. The existing Baja Sharkeez restaurant is located at 114 McFadden Place and will be referred to as “114 McFadden” herein. The former Sol Grill restaurant is located in a vacant tenant space attached and adjacent to Baja Sharkeez. It will be referred to as “110 McFadden”. According to Orange County Assessor records, the building was originally constructed around 1932. Restaurants and bars serving alcohol have occupied the building since the early 1970s. The two restaurant tenant spaces are currently regulated by separate use permits and have no physical interior access between one space and the other. The former Sol Grill was regulated by UP No. 3034 (as amended) and Baja Sharkeez is regulated by UP No. 1783 (as amended). Both tenant spaces have been occupied by several different operators. 110 McFadden has historically been occupied by a market, take-out restaurant, and most recently by a full-service restaurant, Sol Grill, which closed in mid- 2018. 114 McFadden has been historically occupied by nightclubs, bars, and restaurants. In the 1990s, Baja Sharkeez moved into the space under the existing use permit. Although the ABC License was updated to reflect the eating and drinking establishment’s operating characteristics (i.e. no longer a bar/nightclub), the use permit has not been updated since 1985 and it still allows live entertainment and dancing. Both tenant spaces share an on- site parking lot at the rear that contains 10 parking spaces. 5 47 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 4 Project Description The applicant, Baja Sharkeez, proposes the following changes to the existing eating and drinking establishment: a.Remodel the 110 McFadden restaurant space to modernize the building and create an attached dining room to serve 114 McFadden. Both spaces would be combined to form one restaurant. b.The remodel includes installation of a retractable roof over the 110 McFadden space and open-air patio areas. c.Remove existing restriction regarding maximum allowable net public area during the day (prior to 9 p.m.) at 114 McFadden to allow full use of the space; d.The existing 110 and 114 McFadden restaurant hours would be modified to allow increased hours in the morning (i.e. opening of 9:00 a.m. instead of 11:00 a.m.). e.No new or additional late hours are proposed. 110 McFadden would retain the existing closing time of 11:00 p.m. (i.e no late hours). f.The existing late night operating hours at 114 McFadden would be reduced to match the existing Alcoholic Beverage Control (ABC) License conditions. Proposed operations would cease at 1:30 am where the existing use permit for 114 McFadden allows operations until 2:00 a.m. g.The existing 110 McFadden restaurant’s Type 41 Alcoholic Beverage Control License (ABC) would be eliminated and the new dining room would operate pursuant to a Type 47 license. h.The onsite parking lot in the rear would be restriped to retain the existing 10 parking spaces. Any existing unpermitted encroachments or storage areas in the parking lot would be removed prior to implementation of the project and remain clear for vehicle parking. Table 1 Existing and Proposed Operations provides a summary of existing and proposed conditions for both tenant spaces. 6 48 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 5 Table 1 Existing and Proposed Operations Existing 114 McFadden Proposed 114 McFadden Existing 110 McFadden Proposed 110 McFadden Hours of Operation 11:00 am – 2:00 am 9:00 am – 1:30 am 11:00 am - 11:00 pm 9:00 am -11:00 pm Net Public Area (NPA) 960 sf NPA daytime ~1,421 sf NPA nighttime 1,368 sf NPA ~445 sf NPA1 445 sf NPA Number of Seats 125 125 26 292 Outdoor Patio Area Yes Yes No Yes3 ABC License Type Type 47 Type 47 Type 41 Type 47 1.Unknown, prior use measured in gross sf, but the floor plan appears similar in terms of public area. 2.Proposed seating is an estimate. Some seating will be provided as couches and not individual seats. 3.Proposed as an indoor-outdoor space with retractable roof and large pull up windows/doors. Not a separate patio. DISCUSSION General Plan, Zoning Code, Local Coastal Program The Property is located in the Mixed-Use Water Related (“MU-W2”) Zoning District and Mixed-Use Water 2 (MU-W2) land use designation of the General Plan. The MU-W2 designation applies to waterfront properties in which marine-related uses may be intermixed with general commercial, visitor-serving commercial and residential dwelling units on the upper floors. The existing and proposed use of the site as a restaurant is a permitted use in the zoning district with approval of a conditional use permit. No residential use currently exists on site and none is proposed. The project complies with all development standards of the General Plan, Zoning Code, and CLUP including floor area, setbacks, and height, and no deviations are requested with the exception of the historical parking waivers previously approved for both restaurants. Land Use Policy LU6.8.2 (Component Districts) of the General Plan notes “McFadden Square should be emphasized as [one of the] primary activity centers of the northern portion of the Peninsula.” The existing and requested operation of Baja Sharkeez, a resident and visitor serving use, is consistent with this policy. 7 49 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 6 Land Use Policy LU6.12.1 (Priority Uses) of the General Plan and Land Use Policy 2.1.5-7 of the Coastal Land Use Plan state that one of the goals for the McFadden Square area is to “accommodate visitor- and local-serving uses that take advantage of McFadden Square’s waterfront setting including specialty retail, restaurants, and small scale overnight accommodations”. The proposed project is consistent with this policy because it will help to ensure the continued operation of a visitor-serving establishment and occupancy of a vacant storefront. Remodel No construction is proposed within the existing 114 McFadden space, other than building a door in the adjoining wall to combine the two spaces. The proposed remodel at 110 McFadden would include the removal of the existing solid wall along Court Avenue, which would be replaced with a patio area, glass barriers, and windows. The roof would be removed and replaced with a retractable roof. Overall, the design would create an open- air dining experience to complement the existing Baja Sharkeez operation. The 110 McFadden building height would be increased from 17 feet 5 inches to approximately 19 feet, to match the existing roofline of 114 McFadden. Any proposed rooftop equipment would be screened from view of pedestrians and motorists in the vicinity per zoning code requirements. Because the overall occupancy of the restaurant would increase (due to merging the two tenant spaces), Building and Life Safety Services (Fire) Divisions have conditioned the project to include the installation of a fire sprinkler system where none currently exists. The doors at 110 McFadden will also be designed and conditioned to meet egress requirements for the larger space. Lastly, the property will be updated to meet additional accessibility requirements, such as the creation of an accessible parking space in the rear parking lot and substantial upgrades to the 110 McFadden restroom. The building upgrades would provide significant benefits and additional protection to patrons, employees, and the local neighborhood. Operating Characteristics and Hours of Operation Each tenant space would have different operating hours and related operational characteristics. Those related to alcoholic beverage service and occupancy are particularly important to the Newport Beach Police Department (NBPD) and Fire Marshal. On a typical day, the proposed operations will generally occur as follows: 8 50 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 7 9:00 am •Both tenant spaces open for business. 9:00 pm •All doors, windows, patio areas (114 McFadden), and retractable roof (110 McFadden) will close except for egress and ingress. 10:30 pm •“Last call” for alcohol service at 110 McFadden •No new patrons may enter the 110 McFadden space. •Employees advise existing customers in the 110 McFadden space of the upcoming closing time of 11:00 pm. Patrons may leave the building entirely or enter 114 McFadden through the connecting door. •Manager on duty restricts occupancy at 114 McFadden to 141 persons in order to accommodate existing patrons transferring from 110 to 114 McFadden. Restrict new entries as needed to ensure maximum occupancy is not exceeded for 114 McFadden. 11:00 pm •Any remaining patrons exit 110 McFadden. •Connecting door is closed. •110 McFadden closes. •Cleaning operations will occur after 11:00 p.m. ~ 1:00 am •Last call at 114 McFadden 1:30 am •No further sales, service, or consumption of alcoholic beverages allowed. •Remaining patrons begin to leave the premises. Parking The McFadden Square area is adequately served by the two adjacent municipal lots throughout the year and the close proximity to multiple commercial uses and coastal resources will result in shared trips to the project site area. In keeping with historical conditions, walk-up and pass-by patron traffic is common in this area of the peninsula. Visitors to this area are typically going to the beach or bay and have multiple destinations, such as the beach, pier, recreation, shopping, and dining, especially during the summer season. The current parking requirement for a food service, eating and drinking establishment, parking is a rate of one parking space per 30 to 50 square feet (sf) of net public area (NPA), as determined by a use permit. In this case staff believes a parking rate of one 9 51 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 8 space per 50 sf of NPA is appropriate based on several physical design and operational characteristics. Ride sharing is common for businesses that serve alcohol, resulting in fewer parked cars. According to an OC Register Article dated December 29, 2017, ride share data revealed that in Orange County Baja Sharkeez was the number 2 top location for Lyft and number 8 top location for Uber. Additionally, the proposed conditions of approval would prohibit live entertainment and dancing, which also lowers occupancy and resulting parking demand. Like most restaurants in the area, many local residents and visitors walk or bike to McFadden Square and the surrounding areas. Staff believes that in most cases the restaurant would not be considered a destination use for self-drivers and the proposed changes would not change the parking situation in the area. Historically, required parking spaces for 110 and 114 McFadden have been reduced or waived as part of prior use permit approvals. Due to changes in the methodology for calculating required parking spaces since the 70s and 80s, the proposed project will result in an overall net decrease in required parking spaces, even with the additional dining area during the daytime. The applicant is requesting a continuation of historical parking waivers and will provide 10 onsite parking spaces and continued payment of 22 in-lieu parking space fees. Although the in-lieu parking fee program has been discontinued, existing participants must continue to pay the fees. The current fee is $150.00 per in lieu space per year and records indicate that the owner has paid the required fees for at least 22 years. Pursuant to Section 20.40.130 of the NBMC, these fees are paid to the Citywide Parking Improvement Trust Fund. The property also has a non-conforming parking credit of four spaces based on the original construction of the building in the 1960s (prior to off-street parking requirements). Findings and Considerations Conditional Use Permit Findings In accordance with Section 20.52.020 (Conditional Use Permits and Minor Use Permits), the Planning Commission must make the following findings for approval of a conditional use permit: 1.The use is consistent with the General Plan and any applicable specific plan. 2.The use is allowed within the applicable zoning district and complies with all other applicable provisions of the Zoning Code and the Municipal Code. 3.The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity. 10 52 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 9 4.The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities. 5.Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Staff believes sufficient facts exist in support of each finding. The continued operation of a restaurant is consistent with the purpose and intent of the Mixed-Use Water 2 (MU-W2) land use designation of the General Plan. The MU-W2 designation applies to waterfront properties in which marine-related uses may be intermixed with general commercial, visitor-serving commercial, and residential dwelling units on the upper floors. Eating and drinking establishments can be expected to be found in this area and are complementary to the surrounding commercial uses. The project has been reviewed and conditioned to ensure that potential conflicts with the surrounding land uses are minimized to the extent possible to maintain a healthy environment for both residents and businesses. The additional use permit restrictions will help make the establishment more compatible with uses in the McFadden Square area and make implementation clearer for employees. Having uniform ABC and CUP conditions will make enforcement more effective for Code Enforcement and the Police Department. The current use permit allows live entertainment and dancing, where the proposed use permit will prohibit live entertainment or dancing, thereby reducing the probability for the establishment to evolve into a nightclub. The establishment’s location, in the heart of a commercial area within the Balboa Peninsula, is appropriate for an operation with the recommended conditions of approval. Alcohol service will continue to be provided as a convenience to the public and the additional hours of operation in the morning would provide an additional choice for patrons. Conditions of approval are included to limit alcohol service in the morning from 9:00 a.m. to 11:00 a.m. For example, service of “bottomless” beverages is prohibited, and any alcoholic beverage purchase will also require the purchase of food. Staff has included a condition that requires the Planning Commission to review the use after one year of operation with a focus on morning alcohol sales to ensure compatibility with surrounding uses. As conditioned, the proposed project will continue to comply with Zoning Code standards for eating and drinking establishments and solid waste storage. Based on the parking information provided and the characteristics of the area, staff believes that a reduction of the required off-street parking is appropriate. It should be noted that no on-site parking is provided for many uses in the immediate area, where the property provides 10 parking spaces. 11 53 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 10 To help ensure that continued operation of the establishment does not create a detrimental impact during late hours, the operator will be required to secure an operator license and to take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance to areas surrounding the establishment. Should the operator be unable to abide by the conditions of approval or prevent objectionable conditions from occurring, the NBPD will have the authority to modify, suspend, or revoke the operator’s ability to maintain late-hour operations past 11 p.m. NBPD could also reduce the occupant load or modify other operating conditions. Alcoholic Beverage Sales Considerations When reviewing an application to allow an eating or drinking establishment to sell, serve, or give away alcohol, NBMC Section 20.48.090 (Eating and Drinking Establishments) requires the Planning Commission to evaluate the potential impacts upon adjacent uses (within 100 feet as measured between the nearest lot lines) and to consider the proximity to other establishments selling alcoholic beverages for either off-site or on-site consumption. The adjacent uses include mixed-use, residential, restaurants, and retail. The draft resolution includes conditions of approval to minimize negative impacts that the proposed eating and drinking establishment may have to surrounding residential uses and ensure that the use remains compatible with the surrounding community. In order to approve a use permit for alcohol sales, the Planning Commission must also find that the use is consistent with the purpose and intent of Section 20.48.030 (Alcohol Sales). In doing so, the following must be considered: a)The crime rate in the reporting district and adjacent reporting districts as compared to other areas in the City. b)The numbers of alcohol-related calls for service, crimes, or arrests in the reporting district and in adjacent reporting districts. c)The proximity of the establishment to residential zoning districts, day care centers, hospitals, park and recreation facilities, places of worship, schools, other similar uses, and any uses that attract minors. d)The proximity to other establishments selling alcoholic beverages for either off- site or on-site consumption. e)Whether or not the proposed amendment will resolve any current objectionable conditions. The establishment is located within Reporting District 15, which includes most of the commercial establishments for the Balboa Peninsula between the Newport Boulevard on- ramp to Coast Highway and 20th Street. For a map of the City of Newport Beach Reporting 12 54 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 11 Districts, see Attachment No. PC 5. Operational characteristics, including the more restrictive hours at night, are conditioned to maintain and improve compatibility with the surrounding land uses. While the area does have a high concentration of alcohol licenses, both establishments are approved for alcoholic beverage service and historically have held a valid ABC license. Therefore, the project will not result in any increase in the number of alcohol licenses but rather a decrease in one license. The new portion of the restaurant (110 McFadden) would keep the location’s existing closing hour of 11 p.m. daily. Therefore, there is not an increase in area used during late hours (after 11 p.m.). The new space will enhance the dining experience without increasing allowed occupancy of the space, therefore not further contributing to the burden on police services during late night hours. The service of alcoholic beverages provides menu options for customers and potentially enhances the economic viability of the business, while the updated CUP and Operator License will provide greater enforcement tools. A memorandum that includes alcohol-related statistics from 2017 is provided in Attachment No. PC 3. The existing late-night operations at 114 McFadden would be reduced as part of the project. The existing 114 McFadden use permit allows operations until 2:00 a.m., where the proposed project would cease operations at 1:30 a.m. The NBPD does not object to the operational changes with the proposed restrictions on the operational hours and an improved security plan. Additionally, the updated CUP will prohibit live entertainment and dancing allowed by the existing use permit. Although the current operator doesn’t offer these activities, a future operator would otherwise have that option. A detailed discussion of these considerations is provided in the draft resolution for approval (Attachment No. PC 1). Late Hours Considerations Pursuant to NBMC Section 20.48.090 (Eating and Drinking Establishments, the Planning Commission must consider the following potential impacts upon adjacent or nearby uses when reviewing an application to allow late-hour operations: 1.Noise from music, dancing, and voices associated with allowed indoor or outdoor uses and activities; 2.High levels of lighting and illumination; 3.Increased pedestrian and vehicular traffic activity during late and early morning hours; 4.Increased trash and recycling collection activities; 5.Occupancy loads of the use; and 13 55 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 12 6.Any other factors that may affect adjacent or nearby uses. As discussed, no new late-night hours of operation are proposed for 110 McFadden and 114 McFadden would be required to close at 1:30 a.m. where a 2:00 a.m. closing is currently allowed. Thus, conditions would not be substantially different, as currently experienced from surrounding land uses including the residential buildings at the rear the property and across Court Avenue. The proposed use permit would also prohibit live entertainment (including DJs) and dancing, thereby reducing potential noise impacts to the area. No outdoor activities are proposed, and patron queuing would continue to occur in the front of the building adjacent to McFadden Place. Additionally, the existing and proposed outdoor dining areas and new windows/doors would be closed by 9:00 pm, capturing sound from voices and background music inside the building. Residential and other uses to the rear of the property are separated from the business by Court Avenue and the on-site parking lot which creates a buffer. No new parking stalls will be created as part of the parking lot restriping, and it will mainly be used by employees. There are no attractions or key destinations that would draw patrons towards the back of the building or along Court Avenue. Pedestrians and vehicles are typically found in front of the building along McFadden Place, the municipal parking lot, and other uses in the vicinity such as shops, bars and eating and drinking establishments. No new lighting is proposed on the building at this time. There is existing and adequate outdoor lighting within the adjacent municipal parking lot located at the front of the establishment. Conditions of approval allow the Community Development Director to review lighting onsite should any issues arise with spillover onto adjacent sites. The existing trash enclosure would be updated to improve the appearance and functionality, and to keep the door from swinging into the drive aisles and parking spaces. Coastal Development Permit In accordance with Section 21.52.015 (Coastal Development Permits, Findings and Decision) of the NBMC, the Planning Commission must make the following findings for approval of a coastal development permit: A.Conforms to all applicable sections of the certified Local Coastal Program. B.Conforms with the public access and public recreation policies of Chapter 3 of the Coastal Act if the project is located between the nearest public road and the sea or shoreline of any body of water located within the coastal zone. The proposed remodel and operational changes require a coastal development permit due to the potential intensification of use (e.g. additional seating and hours of operation, combining occupancy of the two tenant spaces) and the continuation of historical parking waivers. The proposed project complies with applicable development standards of the Local Coastal Program (LCP) including, but not limited to, floor area limitation, setbacks, and building height. 1214 5656 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 13 As currently developed, the existing restaurant building and other businesses are located within the view shed of the beach and shoreline. Public views are oriented to the south and west away from the existing building. The proposed commercial remodel complies with all applicable Local Coastal Program (LCP) development standards and maintains a building envelope consistent with the existing neighborhood pattern of development. The increased height of the building does not affect public views because there are no public views through the project site and existing building and because the existing building envelope will be maintained, any public views of the beach or ocean from the subject site would be unchanged. Additionally, the project does not contain any unique features that could degrade the visual quality of the coastal zone. The proposed use requires a waiver of one parking space, where historical use permits authorized a waiver of 22 parking spaces. Therefore, any potential impacts related to the increase in net public area during the daytime would be negligible. Similarly, the additional hours of operation requested in the morning (from 9 a.m. to 11 a.m.) are not peak hours for public access, but a breakfast service will benefit visitors and residents alike. Summary The NBPD has reviewed the proposal and has no objection to the Project, subject to appropriate conditions of approval. The existing use permit was approved in the 1980s and the associated conditions are antiquated. The updated use permit will allow the ABC Conditions and City’s use permit conditions to work in concert, where they currently conflict in some cases. The updated CUP and Operator License provide additional tools for the NBPD to control the use should objectionable activities occur. Staff believes the CUP and CDP findings for approval can be made and the facts in support of the required findings are presented in the draft resolution (Attachment No. PC 1). The elimination of one alcohol license, a reduction in late night hours and the provision of breakfast for visitors and residents is a welcome change. The project also requires building upgrades including upgraded restrooms and the addition of fire sprinklers, which will help improve public safety and provide a benefit to the surrounding area. Alternatives Staff believes the findings for approval can be made and is recommending approval of the project as proposed. However, the following alternatives are available to the Planning Commission: 1.The Planning Commission may suggest specific operational changes that are necessary to alleviate any concerns. If any additional requested changes are substantial, the item could be continued to a future meeting. Should the Planning Commission choose to do so, staff will return with a revised resolution incorporating new findings and/or conditions; or 15 57 Baja Sharkeez Remodel Planning Commission, June 18, 2020 Page 14 2.If the Planning Commission believes there are insufficient facts to support the findings for approval, the Planning Commission should deny the application and provide facts in support of denial that would be included in a resolution for denial. Environmental Review This project is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment. The Class 1 exemption allows interior or exterior alterations involving interior partitions, plumbing and electrical conveyances. The Class 1 exemption includes the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use. The Project includes the installation of a door between the two restaurant spaces and a remodel of 110 McFadden to create a retractable roof, a patio with windows, as well as interior improvements and operational adjustments related to business hours and alcoholic beverage service. No new floor area is proposed. The Project also requires improvements to install a sprinkler system for both spaces. Public Notice Notice of this hearing was published in the Daily Pilot, mailed to all owners and residential occupants of property within 300 feet of the boundaries of the site (excluding intervening rights-of-way and waterways) including the applicant and posted on the subject property at least 10 days before the scheduled meeting, consistent with the provisions of the Municipal Code. Additionally, the item appeared on the agenda for this meeting, which was posted at City Hall and on the City website. Prepared by: Submitted by: ______________________________ Liz Westmoreland, Associate Planner ATTACHMENTS PC 1 Draft Resolution for Approval PC 2 Police Department Memorandum PC 3 Project plans 16 58 Attachment No. PC 3 Planning Commission Minutes of June 18, 2020 59 INTENTIONALLY BLANK PAGE60 1 of 9 NEWPORT BEACH PLANNING COMMISSION MINUTES CITY COUNCIL CHAMBERS – 100 CIVIC CENTER DRIVE THURSDAY, JUNE 18, 2020 REGULAR MEETING – 6:30 P.M. I. CALL TO ORDER – The meeting was called to order at 6:32 p.m. II. PLEDGE OF ALLEGIANCE – Secretary Lowrey III. ROLL CALL PRESENT: Chair Peter Koetting, Vice Chair Erik Weigand, Secretary Lee Lowrey, Commissioner Curtis Ellmore, Commissioner Sarah Klaustermeier, Commissioner Lauren Kleiman ABSENT: Commissioner Mark Rosene Staff Present: Community Development Director Seimone Jurjis, Deputy Community Development Director Jim Campbell, Assistant City Attorney Yolanda Summerhill, Police Civilian Investigator Wendy Joe, Battalion Chief Nic Lucas, Senior Engineer Peter Tauscher, AssociatePlanner Chelsea Crager, AssociatePlanner Liz Westmoreland, Administrative Support Specialist Clarivel Rodriguez, Administrative Support Technician Ketshy Palencia IV. PUBLIC COMMENTS Jim Mosher hoped the Community Development Director would provide a status report regarding the City's Housing Element Update. V. REQUEST FOR CONTINUANCES Deputy Community Development Director Jim Campbell reported the applicant requests a continuance of Item No. 3 to July 9, 2020, in order to conduct additional outreach with neighbors. VI. CONSENT ITEMS ITEM NO. 1 MINUTES OF JUNE 4, 2020 Recommended Action: Approve and file Motion made by Vice Chair Weigand and seconded by Commissioner Klaustermeier to approve the minutes of the June 4, 2020, meeting with the edits suggested by Mr. Mosher. AYES: Koetting, Weigand, Ellmore, Klaustermeier, and Kleiman NOES: ABSTAIN: Lowrey ABSENT: Rosene VII. PUBLIC HEARING ITEMS ITEM NO. 2 BAJA SHARKEEZ REMODEL (PA2017-255) Site Location: 110 and 114 McFadden Place Summary: A conditional use permit and coastal development permit to allow modifications to an existing food service eating and drinking establishment, Baja Sharkeez, with late hours of operation with a Type 47 (On Sale General Eating Place) Alcoholic Beverage Control license. The existing and adjacent restaurant space at 110 McFadden (formerly Sol Grill) would be remodeled to serve as a new dining area for the existing Baja Sharkeez restaurant at 114 McFadden Place. The gross floor area of the buildings will not increase. The applicant requests a change to the hours of operation to allow breakfast service starting at 9 a.m. The project includes a continuation of historical parking waivers. 61 Planning Commission Minutes June 18, 2020 2 of 9 Recommended Action: 1. Conduct a public hearing; 2. Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines, because it has no potential to have a significant effect on the environment; and 3. Adopt Resolution No. PC2020-021 approving Conditional Use Permit No. UP2017-034 and Coastal Development Permit No. CD2019-054. Associate Planner Liz Westmoreland reported the application includes a conditional use permit to allow the operation of a restaurant with late hours and alcohol service; a coastal development permit to allow slight intensification of the use; and a continuation of historical parking waivers. The site is located in McFadden Square, where other restaurants operate with alcohol service and late hours. A building with two suites, one of which houses Baja Sharkeez, and a parking lot with about 10 parking spaces are located on the site. Baja Sharkeez has chosen to lease the second suite for additional dining room space. The applicant does not propose any physical changes to the existing Baja Sharkeez space. A door will be added to allow ingress and egress between the two suites. The applicant proposes to remodel the vacant suite to provide an open-air environment with a retractable roof and folding windows. Because of the aggregate occupancy, the applicant is required to implement a sprinkler system. The applicant will upgrade the bathroom to comply with accessibility requirements and provide an accessible parking space at the rear of the building. Staff from the Community Development Department, the Building Division, and the Public Works Department have developed a parking configuration that provides 10 parking spaces. Associate Planner Westmoreland continued to explain that the existing use permit for Baja Sharkeez is out of date and was intended for a bar or night club operation rather than a full-service restaurant. Baja Sharkeez is allowed to operate from 11 a.m. to 2 a.m. daily and to offer live entertainment and dancing. The net public area is limited during the daytime. Baja Sharkeez operates with a Type 47 Alcoholic Beverage Control (ABC) license. The use permit for the vacant suite allows the operation of a take-out business from 11 a.m. to 11 p.m. daily with a Type 41 ABC license. Through this application, staff can modernize the conditions ofapproval for the use permit and align ABC conditions with the use permit. The Type 47 ABC license will be expanded to the vacant suite. The applicant proposes to serve breakfast beginning at 9 a.m., and staff has proposed conditions of approval for the request. Proposed operational changes include breakfast service beginning at 9 a.m., the original Baja Sharkeez's closure at 1:30 a.m., the expanded space closure at 11 p.m., full use of interior space during the day, and a waiver of one parking space. The applicant is required to continue paying in-lieu parking fees for the spaces previously waived. Conditions prohibit bottomless mimosas, free refills of alcoholic beverages, live entertainment and dancing, and require a one-year review, the parking lot to be cleaned up, and all doors/windows/roof to be closed by 9 p.m. Staff has agreed to the applicant's proposed changes to the conditions to allow alcohol service between 9 a.m. and 11 a.m. on weekends and certain holidays listed in a revised condition. In response to Chair Koetting's questions, Associate Planner Westmoreland advised that staff has agreed to allow alcohol service during breakfast on certain holidays and to allow minor changes to Conditions of Approval Nos. 42 and 55. Police Civilian Investigator Wendy Joe added that the Police Department agreed to allowing morning alcohol service on specific holidays. In answer to Vice Chair Weigand's inquiries, Associate Planner Westmoreland indicated smoking would be allowed because the outdoor area has no ceiling or walls when opened, but a condition of approval could be added to prohibit smoking. ABC will review the application and staff's proposed conditions. Some floor area has been lost due to the requirement for the entry door to swing into the building. Regardless of the configuration of tables and chairs, Baja Sharkeez will be required to maintain the occupancy per the use permit and the operator's license. A condition of approval from the Police Department requires Baja Sharkeez to maintain a certain percentage of tables and chairs for dining. The Planning Commission may increase the percentage if it wishes. Police Civilian Investigator Joe added that the condition is part of the ABC license, and the Police Department utilized the same percentage. The applicant is required to maintain a restaurant environment during mealtimes because of the Type 47 license. Per ABC, mealtimes end at approximately 9 p.m. The Commission must determine whether Baja Sharkeez should offer a restaurant or club environment after 9 p.m. Occupancy during the summer months is always a concern for the Police Department. Changing 62 Planning Commission Minutes June 18, 2020 3 of 9 the closing time from 2 a.m. to 1:30 a.m. is not a real change. For other bars, the Police Department considers the closing time for the total environment rather than a portion of the environment. In reply to Commissioner Kleiman's query, Associate Planner Westmoreland indicated that four bars and 21 restaurants in the McFadden Square area have alcohol privileges. Restaurants with a patio, an opening, and a rooftop can operate until 9 p.m. and some as late as midnight. Several restaurants in the vicinity of Baja Sharkeez have similar operating hours, and some can operate until 2 a.m. In response to Commissioner Ellmore's inquiries, Associate Planner Westmoreland stated the two suites are located on one legal lot. She was not aware of Baja Sharkeez's lease agreements. Should Baja Sharkeez release the new space in the future, the Type 47 license will remain with the licensee. A new tenant, other than Baja Sharkeez, in the vacant suite will need a new use permit. The proposed use permit is specific to Baja Sharkeez's proposed business model. Vice Chair Weigand disclosed communications with staff. Remaining Commissioners disclosed no ex parte communications. Chair Koetting opened the public hearing. Greg Newman, applicant representative, described the new space as an extension of the current space but with a significantly different feel. The purpose of the Sol Room is to increase food sales and consumption and to provide a higher level of service in a subdued and relaxed atmosphere. The new space is small. Baja Sharkeez holds a master lease for both suites. After the kitchen closes, about 25 percent of furniture is removed from the original Baja Sharkeez to prevent customers from bumping into each other. Code Enforcement checks Baja Sharkeez's occupancy every few weeks. Ron Newman, applicant representative, believed remodeling the space will help other businesses improve their operations. Baja Sharkeez's operations will change in response to the health emergency. Furniture cannot be moved from the new space into the old space because the old space already has furniture. In reply to Chair Koetting's questions, Ron Newman indicated one kitchen will serve both suites. Remodeling the restaurant will include improving the parking and trash area. GregNewman explained that the patio's glass doors slide closed and lock. One side will contain an emergency exit. The retractable roof is made of a heavy plastic, operates by remote control, forms a water-tight seal, and provides sound attenuation. There will not be any live entertainment to increase the noise level. Baja Sharkeez was remodeled about five years earlier, and the new space is intended to be different from the original space. In answer to Commissioner Kleiman's query, Greg Newman advised that the new space is intended to be a restaurant environment and will close at 11 p.m. Baja Sharkeez is not a club. People visit Baja Sharkeez to dine, enjoy happy hour, and watch sports during the day. After 10 p.m., Baja Sharkeez is a social gathering space. Ron Newman noted Baja Sharkeez will not be able to offer live entertainment and dancing if the Planning Commission approves the use permit. The new space will not offer live entertainment or dancing. The primary benefit of approving the application is alcohol service in the new space. Greg Newman stated Baja Sharkeez does a tremendous food business and focuses on food first. Alcohol sales are needed for the business to make a profit. In response to Secretary Lowrey's inquiry, Greg Newman indicated music is preprogrammed for the hours after 10 p.m. The emphasis is not on dancing but on social gathering. The applicant is willing to forego dancing and live entertainment in order to create a diverse operation. In reply to Commissioner Ellmore's questions, Greg Newman explained that Baja Sharkeez is self-service. Staff provides a menu and directs customers to sit where they choose. Customers order at the counter, and staff brings the orders to the tables. Customers can help themselves to the chips and salsa bar. Ron Newman indicated the person working the service bar will likely greet and seat customers in the new space. Wait staff will take care of customers at their tables. Customers will access the new restaurant through Baja Sharkeez. Greg Newman added that the new space will close at 11 p.m., and guests will move to Baja Sharkeez or exit 63 Planning Commission Minutes June 18, 2020 4 of 9 through Baja Sharkeez. The manager will monitor occupancy in Baja Sharkeez as customers leave the new space. On Friday and Saturday nights, Baja Sharkeez's occupancy changes rapidly as people enter and exit. In answer to Vice Chair Weigand's queries, Greg Newmanagreed to conditions prohibiting the moving of tables and chairs from Baja Sharkeez into the new space and prohibiting smoking in the new space. Baja Sharkeez's ABC license does not allow live entertainment and dancing. The kitchen is open late in order to comply with Condition of Approval No. 42. Chair Koetting closed the public hearing. In reply to Chair Koetting's question, Associate Planner Westmoreland reported the removal of parking spaces at the front of the building is not within staff's purview when reviewing the application since they are located offsite on public property. Staff can explore the issue with the Public Works Department. Chair Koetting noted the difficulty and risk of vehicles backing into traffic. In answer to Commissioner Kleiman's queries, Associate Planner Westmoreland indicated several restaurants and bars in the vicinity serve alcohol during hours similar to and earlier than those proposed in the application. Staff has proposed additional conditions on alcohol service between 9 a.m. and 11 a.m. The Police Department recommended allowing alcohol service seven days a week. Planning staff proposed further restrictions and compromised by allowing alcohol service on specific holidays. Commissioner Kleiman believed alcohol service beginning in the early morning can be problematic on certain holidays. In response to Vice Chair Weigand's inquiry, Police Civilian Investigator Joe advised that the Police Department does not have a DUI or alcohol-consumption problem between the hours of 9 a.m. and 11 a.m. Commissioner Kleiman noted the new business model will not be fully functional over the summer months such that the Planning Commission's review in a year will not include data for peak times. Deputy Community Development Director Campbell suggested changing Condition of Approval No. 7 to indicate the review will occur one year from the date the operation commences. In this way, data from summer months will be available to the Planning Commission. In answer to Commissioner Klaustermeier's questions, Associate Planner Westmoreland advised that there is no patio in the new space where customers may smoke. Customers would have to move to the public area or the rear alley to smoke. Customers are allowed to smoke on the secondary patio at Baja Sharkeez, unless Baja Sharkeez prohibits it. Motion made by Vice Chair Weigand and seconded by Chair Koetting to approve the staff recommendation with the change to Condition of Approval No. 7 and additional conditions of approval prohibiting smoking and storing chairs and tables from Baja Sharkeez. AYES: Koetting, Weigand, Lowrey, Ellmore, Klaustermeier, and Kleiman NOES: ABSTAIN: ABSENT: Rosene ITEM NO. 3 SHELL SERVICE STATION CAR WASH ADDITION (PA2016-093) Site Location: 1600 Jamboree Road Summary: A general plan amendment and conditional use permit to construct an automated car wash in conjunction with an existing service station. A general plan amendment is requested to increase the maximum floor area limit for the site by 1,100 square feet to accommodate the proposed car wash. A conditional use permit is requested to allow the addition of the proposed car wash. This item was continued from the November 8, 2018, Planning Commission hearing. Recommended Action: 64 Attachment No. PC 4 Limited Term Permit No. XP2021-022 65 INTENTIONALLY BLANK PAGE66 CITY OF NEWPORT BEACH ZONING ADMINISTRATOR STAFF REPORT December 16, 2021 Agenda Item No. 11 SUBJECT: Baja Sharkeez (PA2021-201) ▪Limited Term Permit No. XP2021-022 ▪Coastal Development Permit No. CD2021-047 SITE LOCATION: 114 Mc Fadden Place APPLICANT: Baja Sharkeez OWNER: Vince and Michael Fazzi PLANNER: Liz Westmoreland, Associate Planner 949-644-3234, lwestmoreland@newportbeachca.gov LAND USE AND ZONING •General Plan Land Use Plan Category: Mixed-Use Water 2 (MU-W2) •Zoning District: Mixed-Use Water (MU-W2) •Coastal Land Use Plan Category: Mixed-Use Water Related (MU-W) •Coastal Zoning District: Mixed-Use Water (MU-W2) PROJECT SUMMARY A request for a limited term and coastal development permit to allow a 900-square-foot maximum expanded dining area for up to a one-year term (January 1, 2022 through December 31, 2022). An expanded dining area was previously authorized through Emergency Temporary Use Permit No. UP2020-155 (PA2020-269) for Baja Sharkeez. RECOMMENDATION 1)Conduct a public hearing; 2)Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 under Class 1 (Existing Facilities) and Section 15303 under Class 3 (New Construction or Conversion of Small Structures) 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; and 3)Adopt Draft Zoning Administrator Resolution No. _ approving Limited Term Permit No. XP2021-022 and Coastal Development Permit No. CD2021-047 (Attachment No. ZA 1). 1 67 Baja Sharkeez (PA2021-201) Zoning Administrator, December 16, 2021 Page 2 Tmplt: 05/27/20 DISCUSSION •A request for a limited term and coastal development permit to allow a 900-square- foot maximum expanded dining area for up to a one-year term (January 1, 2022 through December 31, 2022). A larger expanded dining area was previously authorized through Emergency Temporary Use Permit (ETUP) No. UP2020-155 (PA2020-269) for Baja Sharkeez. •The expanded patio area is located in the parking lot at the rear of the subject building. The patio has been significantly reduced in scale from the patio that was authorized under ETUP No. UP2020-155, from approximately 2,400 square feet to 900 square feet. Under the ETUP No. UP2020-155 approval, only the accessible stall (one parking space) was maintained as available for parking. Under the proposed project, the expanded dining area will occupy five standard parking spaces and the existing striped accessible space will remain in its approved location. The project will provide access to five parking stalls. To date, no complaints regarding the availability of parking have been received. •The expanded patio area would be required to close at 9:00 p.m. on weekdays (Sunday to Thursday) and 10:00 p.m. on weekends (Friday and Saturday) which would reduce impacts related to nighttime noise emanating from the patio area. •The City is undergoing an analysis of parking rates including rates related to food service and outdoor dining. Findings and recommendations of this study are anticipated by December 2021, and may inform a future conditional use permit amendment for outdoor dining areas. •The expanded dining area will not impede pedestrian coastal access since the proposed patio would be located entirely within private property and is not directly adjacent to the water or beach. Access to the beach is provided in front of the restaurant along the Mc Fadden Place sidewalk. ENVIRONMENTAL REVIEW This project is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 under Class 1 (Existing Facilities) and Section 15303 under Class 3 (New Construction or Conversion of Small Structures), 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. The Class 1 exemption includes the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use. The Class 3 exemption includes a store, motel, office, restaurant, or similar structure not 2 68 Baja Sharkeez (PA2021-201) Zoning Administrator, December 16, 2021 Page 3 Tmplt: 05/27/20 involving the use of significant amounts of hazardous substances, not exceeding 2,500 square feet in floor area or 10,000 square feet in floor area in urbanized areas zoned for such use. The proposed scope of work is a maximum 900-square-foot expanded outdoor dining patio at an existing restaurant for a up to a one-year limited term and qualifies under the parameters of the Class 1 and Class 3 exemptions. There are no known exceptions listed in CEQA Guidelines Section 15300.2 that would invalidate the use of these exemptions. PUBLIC NOTICE Notice of this application was published in the Daily Pilot, mailed to all owners and residential occupants of property within 300 feet of the boundaries of the site (excluding intervening rights-of-way and waterways), including the applicant, and posted on the subject property at least 10 days before the scheduled hearing, consistent with the provisions of the Municipal Code. Additionally, the item appeared on the agenda for this meeting, which was posted at City Hall and on the City website. APPEAL PERIOD: An appeal or call for review may be filed with the Director of Community Development within 14 days following the date of action. Administrative procedures for appeals are provided in the Newport Beach Municipal Code Chapter 20.64 and 21.64. A fee is not required to appeal any final action on a coastal development permit to the Planning Commission. The project site is located within the appeal area of the coastal zone; therefore, final action by the City may be appealed to the California Coastal Commission. For additional information on filing an appeal, contact the Planning Division at 949-644-3200. Prepared by: law Attachments: ZA 1 Draft Resolution ZA 2 Vicinity Map ZA 3 Emergency Temporary Use Permit Action Letter ZA 4 SCE Clearance Decals ZA 5 Project Plans 3 69 INTENTIONALLY BLANK PAGE70 Attachment No. ZA 1 Draft Resolution 4 71 RESOLUTION NO. ZA2021-### A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING LIMITED TERM PERMIT NO. XP2021-022 AND COASTAL DEVELOPMENT PERMIT NO. CD2021-047 TO ALLOW AN EXPANDED OUTDOOR DINING AREA LOCATED AT 114 MC FADDEN PLACE (PA2021-201) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Baja Sharkeez with respect to property located at 114 Mc Fadden Place, and legally described as Parcel 1 of Resubdivision No. 493 in the City of Newport Beach, Orange County, California, requesting approval of a limited term permit and a coastal development permit. 2. A request for a limited term and coastal development permit to allow a 900-square-foot maximum expanded dining area for up to a one (1)-year term (January 1, 2022 through December 31, 2022). An expanded dining area was previously authorized through Emergency Temporary Use Permit (ETUP) No. UP2020-155 (PA2020-269) for Baja Sharkeez. 3. The subject property is designated Mixed-Use Water 2 (MU-W2) by the General Plan Land Use Element and is located within the Mixed-Use Water (MU-W2) Zoning District. 4. The subject property is located within the coastal zone. The Coastal Land Use Plan category is Mixed-Use Water Related (MU-W) and it is located within the Mixed-Use Water (MU-W2) Coastal Zoning district. 5. A public hearing was held on December 16, 2021, online via Zoom. A notice of time, place and purpose of the hearing was given in accordance with the Newport Beach Municipal Code (NBMC). Evidence, both written and oral, was presented to, and considered by, the Zoning Administrator at this hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This project is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 under Class 1 (Existing Facilities) and Section 15303 under Class 3 (New Construction or Conversion of Small Structures) 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 operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use. The 5 72 Zoning Administrator Resolution No. ZA2021-### Page 2 of 13 09-30-21 Class 3 exemption includes a store, motel, office, restaurant, or similar structure not involving the use of significant amounts of hazardous substances, not exceeding 2,500 square feet in floor area or 10,000 square feet in floor area in urbanized areas zoned for such use. The proposed scope of work is a maximum 900-square-foot expanded outdoor dining patio at an existing restaurant for up to a one (1)-year limited term and qualifies under the parameters of the Class 1 and Class 3 exemptions. 3.The exceptions to this categorical exemption under Section 15300.2 are not applicable. The project location does not impact an environmental resource of hazardous or critical concern, does not result in cumulative impacts, does not have a significant effect on the environment due to unusual circumstances, does not damage scenic resources within a state scenic highway, is not a hazardous waste site, and is not identified as a historical resource. SECTION 3. REQUIRED FINDINGS. Limited Term Permit In accordance with Section 20.52.040.G (Limited Term Permits) of the Newport Beach Municipal Code, the following findings and facts in support of such findings are set forth: Finding: A.The operation of the limited duration use at the location proposed and within the time period specified 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 requested limited duration use; Facts in Support of Finding: 1.The limited term permit will allow an extended and expanded outdoor dining patio for up to a one (1)-year term while the City reconsiders its parking requirements related to food service uses. The existing food service use is authorized through Use Permit No. UP2017- 034 (PA2017-255) and includes approximately 1,813 square feet of net public area with a 203-square-foot outdoor dining patio. 2.The expanded dining area has not posed a hazard to the general welfare of persons residing in the area since it was placed during the COVID-19 pandemic in 2020 through an Emergency Temporary Use Permit. The operation of the expanded dining area is limited to up to a one (1)-year beginning January 1, 2022, through December 31, 2022, and has been reviewed and conditioned to preclude any detriment to the general welfare of the area. 3.Outdoor dining areas are common on the Newport Peninsula and Mc Fadden Square and have been used at the subject property during similar hours in the past. The existing patio use has not proven detrimental. Generally, the existing hours of operation for the restaurant 6 73 Zoning Administrator Resolution No. ZA2021-### Page 3 of 13 09-30-21 are 9:00 a.m. through 1:30 a.m., daily (a portion of the space closes at 11:00 p.m.). The expanded outdoor dining area would close by 9:00 p.m., Monday through Thursday, and by 10:00 p.m., Friday through Sunday, as required by Condition of Approval No. 4. Therefore, no late hours are proposed for the expanded outdoor patio. 4. A condition of approval related to heaters is incorporated as Condition of Approval No. 27. If the proposed dining area is revised to include a tent or cover, the applicant must comply with the fire requirements outlined in Condition of Approval No. 28. 5. The proposed operation is conditioned to be accessible to all persons, including those with disabilities, in accordance with the Americans with Disabilities Act (ADA). 6. The permitted use shall adhere to applicable State of California and Orange County Health Care Agency guidelines for the safe operation of the use. It is the responsibility of the permittee to implement and follow industry-specific guidance of the State of California and the Orange County Health Care Agency guidelines. 7. The permitted use must be operated in compliance with applicable State Department of Alcoholic Beverage Control (ABC) requirements. 8. The overall plan includes appropriate delineation of outdoor use spaces with physical barriers or markers. 9. The expanded dining area will not impede pedestrian coastal access since the proposed patio would be located entirely within private property and is not directly adjacent to the water or beach. Access to the beach is provided in front of the restaurant along the Mc Fadden Place sidewalk. Finding: B. The subject lot is adequate in size and shape to accommodate the limited duration use without material detriment to the use and enjoyment of other properties located adjacent to and in the vicinity of the lot; Facts in Support of Finding: 1. The subject lot is approximately 0.18 acre in size and is relatively flat. The existing space has operated as a food service use at this location since the 1970s. Based upon the site plan, there is adequate area to accommodate the expanded dining area without impacting pedestrian circulation and coastal access. 2. The lot is bounded by Mc Fadden Place to the northwest with the Mc Fadden Square parking lot and restaurants located across the street. To the south and southeast are residentially zoned properties. Many existing food service uses with outdoor dining and retail tenants are located throughout the Mc Fadden Square area. The expanded outdoor dining use will not impede use and enjoyment of the properties in the area and will instead add to the ambiance and vibrant character of Mc Fadden Square. 7 74 Zoning Administrator Resolution No. ZA2021-### Page 4 of 13 09-30-21 3.The expanded patio area is located in the parking lot at the rear of the subject building. The patio has been significantly reduced in scale from the patio that was authorized under ETUP No. UP2020-155, from approximately 2,400 square feet to 900 square feet. Under the ETUP No. UP2020-155 approval, only the accessible stall (one [1] parking space) was maintained as available for parking. Under the proposed project, the expanded dining area will occupy five (5) standard parking spaces and the existing striped accessible space will remain in its approved location. The project will provide access to five (5) parking stalls. 4.In order to reduce the number of vehicles driving or maneuvering near the patio, one (1) lane of parking has been allocated to the patio with the available parking area located across the drive aisle separate from the patio. The Public Works Department has reviewed the design and determined it is acceptable on a limited term basis (one [1] year). Based on the proposed configuration, no traffic or site circulation issues are anticipated. 6.The location of the patio has been pulled back from the property line and the five (5) parking spaces would provide an additional buffer from the patio to the residential uses. The City has not received any complaints regarding the location or use of this patio. 7.The expanded patio area would be required to close at 9:00 p.m. on weekdays (Sunday to Thursday) and 10:00 p.m. on weekends (Friday and Saturday) which would reduce impacts related to nighttime noise emanating from the patio area. 8.The proposed parking configuration allows for access to the accessible stall and the adjacent alley, street, and sidewalk without impediment. Finding: C.The subject lot is adequately served by streets or highways having sufficient width and improvements to accommodate the kind and quantity of traffic that the limited duration use would or could reasonably be expected to generate; Facts in Support of Finding: 1.The subject lot is accessed from West Balboa Boulevard and Mc Fadden Place. A surface parking area is provided on-site with 10 parking spaces. The expanded dining area will occupy no more than five (5) standard parking spaces (one row of parking stalls). The existing food service use, Baja Sharkeez, is located in a commercial plaza and proposes to operate all day and into the evening hours with peak hours when other retail and office uses near the property are typically not operating. Sufficient parking is provided on-site and within the public parking lot and no traffic issues are anticipated with the continued use of the expanded dining area. 2.The City is undergoing an analysis of parking rates including rates related to food service and outdoor dining. Findings and recommendations of this study are anticipated by December 2021, and may inform a future conditional use permit amendment for outdoor dining areas. 8 75 Zoning Administrator Resolution No. ZA2021-### Page 5 of 13 09-30-21 Finding: D. Adequate temporary parking to accommodate vehicular traffic to be generated by the limited duration use would be available either on-site or at alternate locations acceptable to the Zoning Administrator; and Facts in Support of Finding: 1. The existing food service use with outdoor dining (Baja Sharkeez) has operated at the subject property since the 1990s, and the property has been used for food service uses since the 1970s. The existing surface parking lot has historically served as the employee parking supply with patrons parking in the public lot adjacent to the site or using alternative methods of transportation (rideshare, bike, walking). The surface lot is expected to adequately accommodate the temporary use for up to a one (1)-year term. The applicant has continued to pay in-lieu parking fees to support the City’s public parking lot and would continue to do so through the duration of the project. 2. The expanded dining area will not impede pedestrian access to the waterfront as there is adequate access via the sidewalk along the front of the building. Finding: E. The limited duration use is consistent with all applicable provisions of the General Plan, any applicable specific plan, the Municipal Code, and other City regulations. Facts in Support of Finding: 1. The General Plan land use designation for this site is MU-W2 (Mixed-Use Water 2) and the Coastal Land Use Plan designation is MU-W (Mixed-Use Water Related). The MU- W2/MU-W designations are intended to provide for waterfront properties in which marine- related uses may be intermixed with general commercial, visitor-serving commercial and residential dwelling units on the upper floors. The expanded outdoor dining use is accessory to the existing food service use with outdoor dining, will be utilized for a limited duration on-site, and will not impede use of the site consistent with the MU-W2 designation. Outdoor dining is a use that tends to foster additional pedestrian and visitor activity. 2. The site is located in the MU-W2 (Mixed Use Water) Zoning District and Coastal Zoning District. The MU-W2 designation is intended to provide for waterfront locations in which marine-related uses may be intermixed with buildings that provide residential on the upper floors. The MU-2 zoning district allows food service uses and the expanded dining area is a temporary use, authorized with a limited term permit. 3. The Limited Term Permit for expanded outdoor dining would complement and be consistent with the other commercial uses permitted within the MU-W2 Zoning District of Mc Fadden Square in that it provides amenities that support visitors to the area and provides a social gathering place for those who live and work in the neighborhood, 9 76 Zoning Administrator Resolution No. ZA2021-### Page 6 of 13 09-30-21 consistent with General Plan Land Use Element Goal LU 2, below. Additional benefits include providing opportunities for the continuation of local businesses that generate sales tax and provide opportunities for employment, which is consistent with General Plan Land Use Element Policy LU 2.4 (Economic Development), also copied below: Goal LU 2 A living, active, and diverse environment that complements all lifestyles and enhances neighborhoods, without compromising the valued resources that make Newport Beach unique. It contains a diversity of uses that support the needs of residents, sustain and enhance the economy, provide job opportunities, serve visitors that enjoy the City’s diverse recreational amenities, and protect its important environmental setting, resources, and quality of life. Policy LU 2.4 Economic Development Accommodate uses that maintain or enhance Newport Beach’s fiscal health and account for market demands, while maintaining and improving the quality of life for current and future residents. (Imp 1.1, 24.1) 4. Council Policy D-9 recognizes the need to balance economic development objectives with protection of the environment and the health and safety of the community. The policy recognizes the need to provide effective and efficient structures for implementing economic programs, utilizing staffing to provide healthy, thriving businesses, and maintain a healthy economy while preserving the unique commercial villages in Newport Beach. The proposed limited term permit would support a local business and economic prosperity while maintaining the unique character of the Peninsula. 5. The site is not located within a specific plan area. Coastal Development Permit In accordance with Section 21.52.015 (Coastal Development Permits, Findings and Decision) of the NBMC, the following findings and facts in support of such findings are set forth: Finding: F. Conforms to all applicable sections of the certified Local Coastal Program. Facts in Support of Finding: 1. The project site is not located adjacent to a coastal view road or coastal viewpoint as identified in the Coastal Land Use Plan. The nearest coastal viewpoint is on the end of the Newport Pier and not visible from the site due to distance and an intervening building that obstructs views. The proposed patio area is located within the existing on-site parking lot at the rear of the site. Establishing a vibrant outdoor dining patio could improve the aesthetics of the site by providing a more active use than parking. The existing building would not be modified as part of this limited term application. The expanded outdoor dining area complies with all applicable Local Coastal Program (LCP) development standards and maintains an area consistent with the existing pattern of development in Mc Fadden 10 77 Zoning Administrator Resolution No. ZA2021-### Page 7 of 13 09-30-21 Square. Additionally, the project does not contain any unique features that could degrade the visual quality of the coastal zone. 2. The project is located adjacent to Mc Fadden Square which is accessible to the public and provides opportunities to view and access the beach as well as other amenities. As currently developed, the existing restaurant building and other business are located within the viewshed of the beach and shoreline. However, the outdoor patio is not likely to be visible from the beach due to its location behind the existing restaurant. Further, the project maintains an envelope consistent with the existing neighborhood pattern of development. 3. The Property is located in the coastal zone and the proposed improvements require a coastal development permit in accordance with Newport Beach Municipal Code (NBMC) Section 21.52.035(C)(2) (Projects Exempt from Coastal Development Permit Requirements). The improvements constitute an increase of ten (10) percent or more of the internal floor area of an existing structure or a lesser improvement that has previously been undertaken pursuant to California Public Resources Code Section 30610(a). The expanded outdoor dining area is considered a minor detached structure. The location of these improvements does not pose a conflict to coastal resources, coastal access, or other adverse environmental effects. 4. Improvements are complementary to the area; the subject restaurant and adjacent neighbors have similar outdoor dining improvements within the walkways and parking areas of Mc Fadden Square. 5. The proposed outdoor dining area would be located completely within private property. 6. Development authorized by this permit is not located in any environmentally sensitive habitat area (ESHA) and public access to the coast will not be blocked. Coastal access is increased by allowing commercial establishments to re-open allowing public to visit coastal areas and provides an added amenity for visitors. The proposed operation does not contain ESHA, wetlands, or sandy beach area. 7. Development authorized is not located in an area in which the California Coastal Commission retains direct permit review authority. 8. The proposed development will not result in the erection of any permanent structures valued at more than $25,000. Finding: G. Conforms with the public access and public recreation policies of Chapter 3 of the Coastal Act if the project is located between the nearest public road and the sea or shoreline of any body of water located within the coastal zone. 11 78 Zoning Administrator Resolution No. ZA2021-### Page 8 of 13 09-30-21 Fact in Support of Finding: 1. The project site is located between the nearest public road and the sea or shoreline. Implementation Plan Section 21.30A.040 (Determination of Public Access/Recreation Impacts) requires that the provision of public access bear a reasonable relationship between the requirement and the project’s impact and be proportional to the impact. In this case, the project is a temporary outdoor patio that is located within the on-site parking lot. The project is designed and sited so as not to block or impede existing public access opportunities. The additional patio area would serve as an amenity to residents and visitors in the area. 2. Vertical access to the beach is available adjacent to the project within the Mc Fadden Place plaza and Newport Pier. Lateral access is available to the beach to the west of the site. The public beach is also the start of a 6-foot-wide public sidewalk providing lateral access and views of the ocean. The project does not include any features that would obstruct access along these routes. 3. The existing 10-space parking lot is primarily used by employees of Baja Sharkeez. The reduction in parking of five (5) spaces on a temporary basis would not create a substantial impediment to public access and parking opportunities in the Coastal Zone. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Zoning Administrator of the City of Newport Beach hereby finds this project is categorically exempt from the California Environmental Quality Act pursuant to Section 15301 under Class 1 (Existing Facilities) and Section 15303 under Class 3 (New Construction or Conversion of Small Structures) 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 Zoning Administrator of the City of Newport Beach hereby approves Limited Term Permit No. XP2021-022 and Coastal Development Permit No. CD2021-047 subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. 3. This action shall become final and effective 14 days following the date this Resolution was adopted unless within such time an appeal or call for review is filed with the Community Development Director in accordance with the provisions of Title 20 Planning and Zoning and Title 21 Local Coastal Implementation Plan, of the Newport Beach Municipal Code. Final action taken by the City may be appealed to the Coastal Commission in compliance with Section 21.64.035 of the City’s certified LCP and Title 14 California Code of Regulations, Sections 13111 through 13120, and Section 30603 of the Coastal Act. 12 79 Zoning Administrator Resolution No. ZA2021-### Page 9 of 13 09-30-21 PASSED, APPROVED, AND ADOPTED THIS 16TH DAY OF DECEMBER, 2021. ____________________________ Jaime Murillo, Zoning Administrator 13 80 Zoning Administrator Resolution No. ZA2021-### Page 10 of 13 09-30-21 EXHIBIT “A” CONDITIONS OF APPROVAL (Project-specific conditions are in italics) Planning Division 1. The development shall be in substantial conformance with the approved site plan, floor plans and building elevations stamped and dated with the date of this approval (except as modified by applicable conditions of approval). 2. The approval of this Limited Term Permit and Coastal Development Permit shall be effective for up to a one (1)-year term January 1, 2022, to December 31, 2022. The applicant shall be required to cease all permitted operations and remove any temporary improvements made to the outdoor spaces as part of this Limited Term Permit on or before December 31, 2022. 3. The expanded dining area shall not exceed 900 square feet in area. 4. The existing allowed hours of operation of the establishment shall not be extended. The hours of operation of the expanded area as part of this approval shall not extend beyond 9 p.m., Monday through Thursday, and will close by 10:00 p.m., Friday through Sunday. 5. There shall be no use of amplified sound. 6. The applicant shall install and maintain a physical barrier between any area used and adjacent common pedestrian walkways in accordance with the requirements of the State Department of Alcoholic Beverage Control. 7. The Applicant shall obtain and maintain authorization from the State Department of Alcoholic Beverage Control (ABC) for all areas where the sale, service or consumption of alcohol is under the control of the applicant. The establishment shall abide by all applicable regulations of the State Department of Alcoholic Beverage Control. 8. All owners, managers, and employees selling and serving alcohol shall comply with all ABC guidelines and regulations and shall further take all measures necessary to prevent over-service of alcohol and/or disorderly conduct form patrons. Increased calls for Police Department service to the establishment or complaints made to the City will cause a review of operations and may result in a revocation of this permit. 9. The sale of alcohol “to go” to patrons that dine within the expanded outdoor patios shall be prohibited. 10. The establishment shall abide by all applicable Orange County Health Care Agency requirements. 14 81 Zoning Administrator Resolution No. ZA2021-### Page 11 of 13 09-30-21 11. The permittee shall provide adequate trash receptacles within the permitted patio shall and the operator shall provide for periodic and appropriate removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. 12. The Community Development Director or designee may inspect the modified area at any time during normal business hours. 13. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 14. 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 approval. 15. This Limited Term Permit and Coastal Development Permit be modified or revoked by the Zoning Administrator if determined 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. 16. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to this Limited Term Permit and Coastal Development Permit. 17. 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 this Limited Term Permit No. XP2021- 022 and Coastal Development Permit No. CD2021-047 (PA2021-201) for Baja Sharkeez. 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. Building Division 18. Any areas used for temporary commercial or institutional use shall be accessible to disabled persons. a. A minimum 4-foot-wide accessible path to all functional area shall be provided. b. Access to restrooms shall be provided at all times. 15 82 Zoning Administrator Resolution No. ZA2021-### Page 12 of 13 09-30-21 c. Accessible parking stalls shall not be used for seating areas when onsite parking is provided. d. At least one (1) accessible seating area shall be provided. e. Detectable warnings are required when pedestrian paths cross or are adjacent to a vehicular way where no physical barrier are provided to separate the two (2). 19. All exiting paths shall be a minimum 36 inches free and clear. All public walks and sidewalks shall be a minimum 48 inches free and clear. 20. All tops of dining and work surfaces shall be 28 to 34 inches above the finish floor. Fire Department 21. Fire lane(s) shall be identified on the plan. 22. Parking, displays, seating or other obstacles that interfere with emergency vehicles and personnel shall not be permitted in fire lanes. 23. Vehicles are permitted to stop in fire lanes awaiting service or delivery provided that the driver remains inside the vehicle and the vehicle is ready to move immediately upon orders from emergency personnel. 24. All Fire Department devices (fire hydrants, fire department connections, water valves, etc.) shall have a 3-foot clearance in all directions. 25. Fire Department devices shall not be covered, blocked or otherwise hidden from plain view. 26. All building exits shall remain free and clear of any obstacles that would impede exiting from a building or suite and accessing the nearest public right-of-way. 27. Heat lamps or other heating elements shall comply with the following requirements in accordance with code section 3107.12 of the California Fire Code: a. Propane and other fuel-based heating elements (including but not limited to flammable/combustible gas, liquid, or solid materials) shall not be used within tents or canopies. b. Electric heaters must be UL listed for use within tents and/or canopies. c. Propane and other fuel-based heating devices with blowers may be permitted, with the heating element located a minimum of 10 feet from the edge of the tent or canopy. d. All heating equipment installations shall be approved for the Fire Code official. 28. Covered outdoor dining areas (separate or consolidated) shall comply with the following standards for tents larger than 400 square feet (two [2] or more walls) and/or canopies larger than 700 square feet (no walls or one [1] wall): • Post maximum occupant load. • Do not exceed posted occupant load inside the tent or canopy. 16 83 Zoning Administrator Resolution No. ZA2021-### Page 13 of 13 09-30-21 • Visible and Mounted Fire Extinguishers with current service tags. • No Smoking Signs shall be installed. • Illuminated Exit Signs shall be installed. • Emergency Lighting shall be provided. • Exit doors are not to be blocked and are to remain accessible as exits while the tent is occupied. • All interior decorative fabrics or materials shall be flame resistant. Provide Certificates of Flame Resistance. • If Propane is used, a permit is required: Cooking and heating equipment shall not be located within 10 feet of exits or combustible materials. • LPG containers shall be located outside and be adequately protected and secured, and a permit will be required. Open flame or other devices emitting flame, such as candles, are not permitted inside or within 20 feet of the tent, canopy, or temporary membrane structure. • Tents and canopies shall have the State Fire Marshal tag indicating fire resistance. • Tents and canopies shall be designed and installed to withstand the elements of the weather and prevent collapsing through weights and ground anchorage. Public Works Department 29. The Applicant shall install and maintain a substantial physical barrier (water-filled traffic barrier or K-rail between any area used and adjacent to any street, driveway, or parking area). 30. There shall be a minimum of 5 feet of space around all overhead facilities, such as poles, and 15 feet of space around all underground facilities, such as vault lids, manholes, vent pipes, pad-mounted transformers, etc. 31. Seating or structures below overhead conductors and/or under the ‘drip line’ shall be prohibited. 32. Public eating/dining at tables shall not be situated on top of energized vault lids, energized underground structures, or next to vent pipes, etc. 33. Expanded outdoor dining areas shall adhere to the SCE clearance decal examples provided. 17 84 Attachment No. ZA 2 Vicinity Map 18 85 VICINITY MAP Limited Term Permit No. XP2021-022 and Coastal Development Permit No. CD2021-047 (PA2021-201) 114 Mc Fadden Place Subject Property 19 86 Attachment No. ZA 3 Emergency Temporary Use Permit Action Letter 20 87 COMMUNITY DEVELOPMENT DEPARTMENT PLANNING DIVISION 100 Civic Center Drive, P.O. Box 1768, Newport Beach, CA 92658-8915 949-644-3200 www.newportbeachca.gov COMMUNITY DEVELOPMENT DIRECTOR EMERGENCY TEMPORARY USE PERMIT ACTION Subject: Baja Sharkeez Amendment (PA2020-269) ▪ Emergency Temporary Use Permit No. UP2020-155 Site Location 114 McFadden Place Applicant Newport Sharkeez, Inc. Property Owner Michael Fazzi On September 17, 2020 the Community Development Director approved an amendment to Emergency Temporary Use Permit No. UP2020-017 and Emergency Coastal Development Permit No. CD2020-033. This approval is based on the following findings and subject to the following conditions. I. SUMMARY OF PROPOSED MODIFIED OPERATION The Applicant proposes to modify operations for the existing Baja Sharkeez restaurant to ensure the safety of its employees and patrons, as described in Attachment No. CD 2. The modified operations are summarized as follows: 1. Temporary closure of the entire on-site parking area with barricades to allow a temporary outdoor dining area. A minimum entrance of four (4) feet in width will be provided to the temporary dining area. All tables will be placed such that they are at least seven (7) feet apart. 2. Alcohol will be served on the temporary expanded area, subject to compliance with all California Department of Alcoholic Beverage Control (ABC) requirements and limitations. 3. Total combined occupant load for indoor and temporary outdoor use areas will not exceed the currently allowed maximum occupant load. 4. The requested change is to allow a later closing hour of 10 p.m. on Friday, Saturday and Sunday. Upon issuance and acknowledgement, Emergency Temporary Use Permit No. UP2020- 017 and Emergency Coastal Development Permit No. CD2020-033 shall be considered superseded and rendered null-and-void. DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C 21 88 Baja Sharkeez Amendment (PA2020-269) September 17, 2020 Page 2 Tmplt: 05/22/2020 II. CEQA DETERMINATION The proposed operation is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15269 (c) (the activity is necessary to prevent or mitigate an emergency), Section 15301 Class 1 (Existing Facilities) and Section 15303 Class 3 (New Construction or Conversion of Small Structures), respectively, 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. Section 15269 allows specific actions necessary to prevent or mitigate an emergency. The Class 1 exemption includes the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use. The Class 3 exemption includes a store, motel, office, restaurant, or similar structure not involving the use of significant amounts of hazardous substances, not exceeding 2,500 square feet in floor area or 10,000 square feet in floor area in urbanized areas zoned for such use. The permitted project meets these criteria and there are no known exceptions listed in CEQA Guidelines Section 15300.2 that would invalidate the use of these exemptions. III. EMERGENCY TEMPORARY USE PERMIT FINDINGS In this case the Community Development Director has found that the temporary use would not create a hazard to the health, safety or welfare of the community for the following reasons: 1. The operation authorized by this Emergency Temporary Use Permit and Emergency Coastal Development Permit is temporary and only valid during the emergency order established by Emergency Ordinance No. 2020-005. 2. The project, based upon the applicant’s project description, approved site plan, and implementation of all conditions of approval, will be operated safely thereby helping reduce the spread of COVID-19. 3. The permitted use shall adhere to applicable State of California and Orange County Health Care Agency guidelines for the safe operation of the use. It is the responsibility of the permittee to implement and follow industry-specific guidance of the State of California and the Orange County Health Care Agency guidelines. 4. The permitted use must be operated in compliance with applicable State Department of Alcoholic Beverage Control (ABC) requirements. 5. The plan includes appropriate delineation of outdoor use spaces with temporary physical barriers or markers. 6. The proposed operation is conditioned to be accessible to all persons, including those with disabilities, in accordance with the Americans with Disabilities Act (ADA). DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C 22 89 Baja Sharkeez Amendment (PA2020-269) September 17, 2020 Page 3 Tmplt: 05/22/2020 7. This Emergency Temporary Use Permit does not extend the allowed hours and days of operation beyond those currently permitted by any applicable City- or County- issued discretionary permit. 8. The proposed operation is necessary to provide adequate space to allow for appropriate social distancing to prevent further spread of COVID-19. The proposed site plan or use diagram provides adequate areas for patrons to practice social distancing to reduce the likelihood of spreading COVID-19. 9. The proposed operation is conditioned to be accessible to all persons, including those with disabilities, in accordance with the Americans with Disabilities Act (ADA). 10. The proposed operation does not contain ESHA, wetlands, or sandy beach area. 11. The proposed development will not result in the erection of any permanent structures valued at more than $25,000. 12. This action meets the criteria for a waiver of permitting requirements under Section 30611. Coastal Development Permit Waiver Request No. 4 removes the need for emergency Coastal Development Permits (CDPs) or for any required follow-up CDPs that would normally be required after issuance of emergency CDPs, so long as the development conforms with that described in the California Coastal Commission letter dated August 21, 2020 and City Council Emergency Ordinance 2020-005. IV. CONDITIONS OF APPROVAL 1. Only that specifically described above and depicted in the attached site plan is authorized, subject to the conditions set forth below. Any additional changes require separate review and may necessitate separate authorization from the Director. 2. As long as this Emergency Temporary Use Permit is in effect, all NBMC provisions and any restrictions set forth in an applicable discretionary permit regulating uses, nonconforming uses, development standards, parking and permit procedures that regulate the use and development of private or public property operations are suspended only to the extent that the these provisions or restrictions set forth in a discretionary permit conflict with the terms of this Emergency Temporary Use Permit. 3. If the proposed operation is using any portion of the public right-of-way, the Applicant shall obtain and maintain liability insurance for not less than $1,000,000 per occurrence and as specified by the City’s Risk Manager. All liability insurance policies shall specifically include the City, the City Council, its employees, and agents as additional insureds and 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. DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C 23 90 Baja Sharkeez Amendment (PA2020-269) September 17, 2020 Page 4 Tmplt: 05/22/2020 4. The existing allowed hours of operation of the establishment shall not be extended. The hours of operation of the area modified as part of this Emergency Temporary Use Permit shall not extend beyond 9 p.m. on Monday through Thursday or 10 p.m. on Friday, Saturday and Sunday. All operations shall cease by the identified hours. 5. The use of amplified sound within the temporary area shall be prohibited. 6. All dining tables shall be separated from other dining tables and/or waiting areas by a minimum distance of seven (7) feet to ensure proper social distancing is maintained. 7. The applicant shall install and maintain a substantial physical barrier between any area used and adjacent to any street, driveway or parking area. 8. The applicant shall obtain and maintain authorization from the State Department of Alcoholic Beverage Control (ABC) for all areas where the sale, service or consumption of alcohol is under the control of the applicant. The establishment shall abide by all applicable regulations of the State Department of Alcoholic Beverage Control. 9. All owners, managers, and employees selling and serving alcohol shall comply with all ABC guidelines and regulations and shall further take all measures necessary to prevent over-service of alcohol and/or disorderly conduct from patrons. Increased calls for Police Department service to the establishment or complaints made to the City will cause a review of operations and may result in a revocation of this Permit. 10. The sale of alcohol “to go” to patrons that dine within the restaurant or expanded outdoor patios shall be prohibited. 11. The establishment shall abide by all applicable Orange County Health Care Agency requirements. 12. Establishments that provide food service, shall abide by the COVID-19 Industry Guidance: Dine-In Restaurants provided by the California Department of Public Health and Department of Industrial Health. 13. The permittee shall provide adequate trash receptacles within the permitted patio shall and the operator shall provide for periodic and appropriate removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. 14. Any areas used for temporary commercial or institutional use shall be accessible to disabled persons as follows: a. An accessible path to all functional area shall be provided. b. Access to restrooms shall be provided at all times. DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C 24 91 Baja Sharkeez Amendment (PA2020-269) September 17, 2020 Page 5 Tmplt: 05/22/2020 c. Accessible parking stalls shall not be used for seating areas when onsite parking is provided. d. Accessible seating at tables or counters shall provide knee clearance of at least 27 inches high, 30 inches wide and 19 inches deep. e. Detectable warnings are required when pedestrian paths cross or are adjacent to a vehicular way where no physical barrier are provided to separate the two. 15. All tops of dining and work surfaces shall be 28 inches to 34 inches above the finish floor. 16. All exiting paths shall be a minimum 36 inches free and clear. All public walks and sidewalks shall be a minimum 48 inches free and clear. 17. Fire lane(s) shall be identified on the plan. 18. Parking, displays, seating or other obstacles that interfere with emergency vehicles and personnel shall not be permitted in fire lanes. 19. Vehicles are permitted to stop in fire lanes awaiting service or delivery provided that the driver remains inside the vehicle and the vehicle is ready to move immediately upon orders from emergency personnel. 20. All Fire Department devices (fire hydrants, fire department connections, water valves, etc.) shall have a three-foot clearance in all directions. 21. Fire Department devices shall not be covered, blocked or otherwise hidden from plain view. 22. All building exits shall remain free and clear of any obstacles that would impede exiting from a building or suite and accessing the nearest public right-of-way. 23. The Community Development Director or designee may inspect the modified area at any time during normal business hours. 24. The Community Development Director may immediately revoke this permit if the 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 permit. 25. The Community Development Director may modify this Emergency Temporary Use Permit. The Director shall notify the applicant of any proposed modification and a decision to modify this permit shall be deemed effective upon the posting of a notice of modification at the site of the business granted the emergency temporary use permit DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C 25 92 Baja Sharkeez Amendment (PA2020-269) September 17, 2020 Page 6 Tmplt: 05/22/2020 26. This temporary authorization shall expire fourteen (14) days after the emergency order established by Emergency Ordinance No. 2020-005 is terminated or repealed, or 60 days from the date of authorization, whichever is sooner. The Director may extend this approval for an additional 60 days for good cause. 27. Upon termination or repeal of Emergency Ordinance No. 2020-005, the Applicant shall immediately work to remove the temporary improvements in a timely manner and shall restore the expanded area back to its original use and improvements. 28. 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 this Emergency Temporary Use Permit/Coastal Development 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, 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. V. APPEAL This decision 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 and the City Manager's decision shall be final. On behalf of Seimone Jurjis, Community Development Director, ______________________________ Benjamin M. Zdeba, AICP Senior Planner Attachments: CD 1 Filed Application CD 2 Written Project Description CD 3 Site Plan Diagram DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C 26 93 Baja Sharkeez Amendment (PA2020-269) September 17, 2020 Page 7 Tmplt: 05/22/2020 Applicant and Permit Recipient Acknowledgement and Agreement I hereby acknowledge that I have received a copy of this permit and that I have read and understand the permit and all conditions. I hereby agree to operate the authorized use consistent with this permit including the project description, approved site plan diagram, findings, and conditions of approval. This is an approved and executed permit and it constitutes a contract between the City and Permittee for all purposes. Applicant Name and Title Signature Date DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C Gm 9/17/2020 Eric Levit 27 94 Baja Sharkeez Amendment (PA2020-269) September 17, 2020 Page 8 Tmplt: 05/22/2020 Attachment No. CD 1 Filed Application DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C 28 95 PA2020-269DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C 29 96 Attachment No. CD 2 Written Project Description DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C 30 97 PA2020-088 Project Description Measures for reduced spread of COVID • Social distancing of 7ft • Masks for all staff • Gloves for staff handling any food or disposing of food and trash • Individual wrap disposable utensils • Disposable drinkware • Hand sanitizer stations • Signage explaining all procedures • Temperature checks of employees at beginning and end of shifts • Temperature checks of guests at door Alcoholic drinks will be served on patio and ABC permit has been submitted Signage explaining exits and entrances remaining the same through the front door Site and Seating diagram (attached) Estimated space used 2000 square feet Over 7ft between tables DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C 31 98 Baja Sharkeez Amendment (PA2020-269) September 17, 2020 Page 2 Tmplt: 05/22/2020 Attachment No. CD 3 Site Plan Diagram DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C 32 99 DocuSign Envelope ID: F4D37624-F681-4561-B3D0-E97251A1BC2C 33 100 Attachment No. ZA 4 SCE Clearance Decals 34 101 SOUTHERN CALIFORNIA EDISON TRANSMISSION AND DISTRIBUTION BUSINESS UNIT Approved Decals June 8, 2020 35 102 36 103 D5437104 Tmplt: 05/27/20 Attachment No. ZA 5 Project Plans 38 105 39 106 Attachment No. PC 5 Code Enforcement Memorandum 107 INTENTIONALLY BLANK PAGE108 109 110 111 112 113 INTENTIONALLY BLANK PAGE114 Attachment No. PC 6 Police Department Data 115 INTENTIONALLY BLANK PAGE116 117 INTENTIONALLY BLANK PAGE118 Attachment No. PC 7 Applicant’s Statement 119 INTENTIONALLY BLANK PAGE120 From: Greg Newman <gregn@sharkeez.net> Sent: July 09, 2022 3:40 PM To: Westmoreland, Liz Cc: Ron Newman; Jordan Cressman; Eric Levit; Greg Newman Subject: Re: Sharkeez Review - Owner/operator statement Follow Up Flag: Follow up Flag Status: Flagged [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Hi Liz, Thank you for sharing the code enforcement report, that’s super helpful and we appreciate it. Below I will explain the steps that we have taken to comply with all the rules of our CUP. Call me with any questions or issues. In regards to the first violation about the sliding doors on the side of the building being open after 9pm we needed to drill down on our Lead team. With all new procedures in a business some Team members need to be reminded more than once while others get it right away. We had several more Lead meetings where we went over all the new conditions and called at 9pm to remind them and it quickly became routine. In regards to the outside patio being used for dining and drinking after 9pm there was a bit of confusion as far as the south side being a “sliding door opening” or an actual patio. We had tables and chairs pushed out too far. This has since been clarified and resolved with the entire Lead Team. In regards to any noise complaints we have had the GM Eric Levitt visited those apartments over the course of several weeks until he found each one at home, spoke with them about the issue and gave them each his personal cell phone if they had any noise issues whatsoever. We have not had any issues since. Finally, as far as the DJ issue is concerned, we seemed to have Leads on the Team that got a bit “overzealous” about spending time behind the audio/video area picking music at night instead of being on the floor doing what they were supposed to be doing. This has been discussed with the entire Team and they are aware they can pick songs but not spend more than 5-10 minutes at a time doing it. We also have developed a series of long playlists that we can put on for over an hour each and nobody has to touch it at all. Thank You! Greg Newman President/CEO Baja Sharkeez Restaurant Group - Baja Sharkeez, Sandbar, Panama Joe's, Killarney’s Irish Pub, Tower12, Palmilla Cocina y Tequila & Esperanza Cocina de la Playa p. 310-374-3964 f. 310-374-9901 121 36 13th Ct. Hermosa Beach, CA 90254 www.sharkeez.net www.sandbarsb.com www.panamajoescantina.com www.tower12hb.com www.p almillarestaurant.com www.esperanzamb.com Hermosa I Huntington I Manhattan I Newport I Santa Barbara I Belmont Shore 122 Attachment No. PC 8 Approved Project Plans 123 INTENTIONALLY BLANK PAGE124 PA2017-255Attachment No. PC 8 - Project Plans125 2% SLOPEPA2017-255Attachment No. PC 8 - Project Plans126 2% SLOPE2% SLOPEPA2017-255Attachment No. PC 8 - Project Plans127 PA2017-255Attachment No. PC 8 - Project Plans128 VRO JULOOPA2017-255Attachment No. PC 8 - Project Plans129 NEW ELEVATIONPA2017-255Attachment No. PC 8 - Project Plans130 PA2017-255Attachment No. PC 8 - Project Plans131 NEW SECTIONCENTERLINE OFMC FADDEN PLACECENTERLINE OFCOURT ST PA2017-255Attachment No. PC 8 - Project Plans132 EROSION CONTROL BMPsTEMPORARY SEDIMENT CONTROLWIND EROSION CONTROLWASTE MANAGEMENT AND MATERIALS POLLUTION CONTROLTRACKING CONTROLNON-STORMWATER MANAGEMENTYEAR-ROUND BMP REQUIREMENTSLEGENDNOTE139 Avenida NavarroSan Cl ement e, CA 92672949.492.8586www.toalengineeri ng.comCIVIL ENGINEERINGLAND SURVEYI NGSTORMWATER QUALITYPA2017-255Attachment No. PC 8 - Project Plans133 One Year Review ofBaja Sharkeez CUP Planning Commission Meeting July 21, 2022 Liz Westmoreland, Associate Planner Planning Commission - July 21, 2022 Item No. 2a - Additional Materials Presented at the Meeting by Staff Baja Sharkeez Conditional Use Permit Review (PA2017-255) Introduction •Conditional Use Permit No. UP2017-035 •Approved by Planning Commission in June 2020 •Condition of Approval for a One-Year Review •Focus on alcohol sales in the morning (9 AM –11 AM) •One year after start of operations 2Community Development Department Planning Commission - July 21, 2022 Item No. 2a - Additional Materials Presented at the Meeting by Staff Baja Sharkeez Conditional Use Permit Review (PA2017-255) Vicinity Map 3 Planning Commission - July 21, 2022 Item No. 2a - Additional Materials Presented at the Meeting by Staff Baja Sharkeez Conditional Use Permit Review (PA2017-255) Conditional Use Permit: UP2017-034 Amended Historical Use Permit •Allowed continuation of eating and drinking use •Reduced late hours (until 1:30 AM) •Increased morning hours (open at 9:00 AM) •Expansion into adjacent suite •Physical improvements •Type 47 ABC License expansion •Removal of existing Type 41 ABC License •Removed Live Entertainment/Dancing •Modernized CUP conditions 4Community Development Department Planning Commission - July 21, 2022 Item No. 2a - Additional Materials Presented at the Meeting by Staff Baja Sharkeez Conditional Use Permit Review (PA2017-255) Approved Conditional Use Permit 5Community Development Department 110 Mc Fadden Expanded Dining Room 114 Mc Fadden Original Dining Room Planning Commission - July 21, 2022 Item No. 2a - Additional Materials Presented at the Meeting by Staff Baja Sharkeez Conditional Use Permit Review (PA2017-255) Temporary Outdoor Dining Patio 6Community Development Department Planning Commission - July 21, 2022 Item No. 2a - Additional Materials Presented at the Meeting by Staff Baja Sharkeez Conditional Use Permit Review (PA2017-255) Alcohol Service - 9 AM to 11 AM 7Community Development Department Planning Commission - July 21, 2022 Item No. 2a - Additional Materials Presented at the Meeting by Staff Baja Sharkeez Conditional Use Permit Review (PA2017-255) Resolved Issues or Complaints •Doors and windows closing at 9PM •2 Notice of Violation (July and October 2021)•No violations since October 2021•Condition Nos. 5 and 8 •Noise •Notice of Violation (October 31, 2021)•No issues found during the 6 investigations•Condition No. 22 •Live Entertainment •Citation issued for DJ activity (January 25, 2022)•No issues since the citation•Condition No. 53 8Community Development Department Planning Commission - July 21, 2022 Item No. 2a - Additional Materials Presented at the Meeting by Staff Baja Sharkeez Conditional Use Permit Review (PA2017-255) Conclusion •Observed compliance with CUP conditions •Lack of complaints •Issues resolved quickly after violations issued •No alcohol issues in the morning from 9 AM to 11 AM 9Community Development Department Planning Commission - July 21, 2022 Item No. 2a - Additional Materials Presented at the Meeting by Staff Baja Sharkeez Conditional Use Permit Review (PA2017-255) Recommended Action •Receive public comments •Find the one-year review exempt from CEQA •Accept and file the one-year review of UP2017-034 •No further reviews are recommended •Code enforcement will continue monitoring 10Community Development Department Planning Commission - July 21, 2022 Item No. 2a - Additional Materials Presented at the Meeting by Staff Baja Sharkeez Conditional Use Permit Review (PA2017-255) 11 Questions and Discussion Liz Westmoreland, Associate Planner lwestmoreland@newportbeachca.gov, (949) 644-3234 Planning Commission, One Year Review July 21, 2022 Planning Commission - July 21, 2022 Item No. 2a - Additional Materials Presented at the Meeting by Staff Baja Sharkeez Conditional Use Permit Review (PA2017-255)