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HomeMy WebLinkAboutPA2023-0063_20230706_Resolution_PC2023-027Community Development Department CITY OF NEWPORT BEACH 100 Civic Center Drive Newport Beach, California 92660 949 644-3200 newportbeachca.gov/communitydevelopment VIA EMAIL August 1, 2023 Andrew Yapp Southern California Land Use 407 N. Pacific Coast Highway #1042 Redondo Beach, CA 90277 andrew@sclanduse.com Subject: Application No. PA2023-0063 Conditional Use Permit Coastal Development Permit 3201 E. Coast Highway Bandera Restaurant Dear Mr. Yapp, It was a pleasure working with you on the above referenced application. Please be advised that the subject application was approved by the Planning Commission on July 6, 2023 and is now within the required City appeal period until July 20, 2023. If no appeals are filed with the City, a Notice of Final Action will be mailed to the California Coastal Commission. A copy of the approved resolution with findings and conditions is attached. If you have any questions, please do not hesitate to contact me directly. Thank you and I look forward to working with you again in the future. Sincerely, Kelly Ribuffo, Consultant Planner DL/kr cc: Frances Boero 2151 Michelson Drive, Unit 282 Irvine, CA 92612 RESOLUTION NO. PC2023-027 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING A CONDITIONAL USE PERMIT AND COASTAL DEVELOPMENT PERMIT TO MODIFY THE HOURS OF OPERATION AND FLOOR PLAN FOR AN EXISTING RESTURUANT OPERATING WITH A TYPE 47 (ON-SALE GENERAL – EATING PLACE) ALCOHOL BEVERAGE CONTROL (ABC) LICENSE FOR THE PROPERTY LOCATED AT 3201 COAST HIGHWAY EAST (PA2023-0063) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Andrew Yapp of Southern California Land Use (“Applicant”), with respect to property located at 3201 Coast Highway East, and legally described In Exhibit “A,” which is attached hereto and incorporated herein by reference (“Property”). 2. The Applicant proposes to modify Use Permit No. 3564 and Site Plan Review No. 73 to modify the hours of operation from 4:00 p.m. to 12:00 a.m., daily, to 11:00 a.m. to 12:00 a.m., daily, for an existing eating and drinking establishment (hereon referred to as the “Restaurant”) which includes the sale of alcoholic beverages pursuant to a Type 47 (On- Sale General – Eating Place) Alcoholic Beverage Control (ABC) License. Additionally, the Applicant proposes to modify the approved seating layout without changing the existing net public area (“Project”). Approval of the Project would supersede Use Permit No. 3564 and Site Plan Review No. 73. 3. The Property is categorized Corridor Commercial (CC) by the General Plan Land Use Element and is located within the Commercial Corridor (CC) Zoning District. 4. The Property is located within the coastal zone. The Property is categorized as Corridor Commercial (CC-B) (0.0 – 0.75 FAR) by the Coastal Land Use Plan and is located in the Commercial Corridor (CC) coastal zoning district. 5. Subsequent to the approval of Use Permit No. 3564 and Site Plan Review No 73 on August 10, 1995, a Coastal Development Permit (CDP) was approved by the California Coastal Commission (CCC) on October 10, 1995, which states that a change in hours of operation requires an amendment to the CDP. Therefore, the Project requires a CDP. 6. A public hearing was held on July 6, 2023 in the Council Chambers at 100 Civic Center Drive, Newport Beach. 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”) and Chapters 20.62 and 21.62 (Public Hearings) of the NBMC. Evidence, Planning Commission Resolution No. PC2023-027 Page 2 of 17 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 (Existing Facilities) 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 consists of modifications of operational hours and seating layout for an existing restaurant that involves minor interior alterations to existing structures involving negligible or no expansion of use, and further no addition of floor area. As such, the project is not expected to prove detrimental to the surrounding area. SECTION 3. REQUIRED FINDINGS. Alcohol Sales In accordance with Section 20.48.030(C)(3) (Alcohol Sales-Required Findings) of the NBMC, the findings and facts in support of such findings are set forth as follows: Finding: A. The use is consistent with the purpose and intent of NBMC Section 20.48.030 (Alcohol Sales). Facts in Support of Finding: i. The crime rate in the reporting district and adjacent reporting districts as compared to other areas in the City. 1. The Property is in Reporting District 44 (RD 44). RD 44 exceeds the Citywide average and is considered a higher crime area as compared to other reporting districts. The crime count in RD 44 is 213, which is 111 percent over the Citywide crime count average of 101. Since this area has 20 percent or greater 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. However, RD 44 contains many visitor- and tourist-serving nonresidential uses along East Coast Highway. Corona del Mar contains several restaurants that serve residents and visitors to the area. The intent of the CC zoning district is to provide areas appropriate for a range of neighborhood-serving retail and service uses along street frontages that are located and designed to foster pedestrian activity. Areas Planning Commission Resolution No. PC2023-027 Page 3 of 17 near the beach have a higher concentration of visitor-serving commercial land uses and, therefore, tend to have a higher crime rate than other areas in the City. Furthermore, since the existing restaurant currently maintains alcohol sales, the additional lunch hours are unlikely to increase crime in the area. 2. The Newport Beach Police Department (“NBPD”) has reviewed the proposed use. Based on the location, operational characteristics, and closing hours, the NBPD has no objection to the proposed modifications to the hours of operation for the existing Type 47 ABC License, subject to appropriate conditions of approval, which are included in Exhibit “B” attached to this Resolution. ii. The numbers of alcohol-related calls for service, crimes, or arrests in the reporting district and in adjacent reporting districts. 1. Due to the higher concentration of commercial land uses, RD 44 is reported to ABC as a high crime area as compared to other reporting districts in the City. The highest volume crime in this area is vandalism. The highest volume arrest in the area is for driving under the influence (DUI). DUI, public intoxication, and liquor law violations make up 24 percent of arrests in this reporting district. However, the area is considered an attractive tourist area in the City, which results in a higher number of alcohol-related calls for service, crimes and arrests. 2. During 2021, the subject restaurant had 23 dispatch events to the location, but these calls did not result in any alcohol-related arrests. The business did not receive any alcohol-related citations within the same period. Therefore, the NBPD has no concerns with the proposed application. In addition, updated conditions of approval have been provided to bring conditions related to alcohol sales to current standards. 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. Although the Project is located near a residential district, the Property is a single- tenant commercial building that is situated in a commercial zoning district abutting East Coast Highway. Residential neighborhoods are located across Bayside Drive to the southwest. However, the restaurant is oriented towards East Coast Highway and is buffered from residential by the on-site parking lot and adjacent municipal parking lot. 2. The Project is not in proximity to a religious facility, daycare center, park, recreational facility, school, or similar uses that attract minors. The nearest school is Harbor View Elementary School, which is over 2,000 feet northeast of the restaurant. Since 1996, the current restaurant has been in operation at this location with alcohol sales without causing detriment to the surrounding neighborhood. 3. Alcohol sales currently exist on the site and the additional hours of operation are not anticipated to be detrimental to the community because of the proximity to any Planning Commission Resolution No. PC2023-027 Page 4 of 17 sensitive land uses, especially with the allowed operation narrowed by the Conditions of Approval. iv. The proximity to other establishments selling alcoholic beverages for either off-site or on- site consumption. 1. The Property is located within census tract 627.02. This census tract has an approximate population of 4,515 residents with 15 active on-sale alcohol licenses which is a per capita ratio of one on-sale license for every 251 residents. The per capita ratio of on-sale alcohol licenses for Orange County is one license for every 822 residents. This location meets the legal criteria for undue concentration pertaining to alcohol establishments. 2. Several other establishments along East Coast Highway currently have active ABC Licenses, most of which are bona fide eating and drinking establishments and are not defined as bars, lounges or nightclubs by the Zoning Code. The closest establishment selling alcoholic beverages for on-site consumption is The Quiet Woman, which is located approximately 130 feet away at 3224 East Coast Highway and has a Type 47 (On-Sale General - Eating Place) license. 3. The Project’s proximity to other establishments selling alcohol does not raise concern due to the limited characteristics of the use, including 3,190 square feet of interior net public area with conditioned hours of operation are from 11:00 a.m. to 12:00 a.m., Monday through Sunday. The proposed cessation of alcohol sales is no later than the current allowed hours approved by Use Permit No. 3564 but will allow for lunch service in addition to existing dinner service hours. Conditions of approval will further prevent the establishment from operating as a bar, lounge, or nightclub. 4. Although the per capita ratio of on-sale alcohol licenses to residents is higher than the average in the County and the Property is proximate to establishments selling alcoholic beverages for on-site and off-site consumption, the operational conditions of approval recommended by the NBPD and requirement to obtain an operator’s license will ensure compatibility with the surrounding uses and minimize alcohol related impacts. v. Whether or not the proposed amendment will resolve any current objectionable conditions. 1. No objectionable conditions are presently occurring at the Property. The Property has historically been used as a restaurant. There is no evidence that suggests the Project will create objectionable conditions with the proposed hours of operation. 2. The Project has been reviewed by the NBPD, which has provided several conditions of approval as provided in the draft resolution. The conditions of approval help to ensure that the purpose and intent of Section 20.48.030 of the NBMC is maintained and that a healthy environment for residents and businesses is preserved. The NBPD do not Planning Commission Resolution No. PC2023-027 Page 5 of 17 anticipate detrimental conditions due to the proposed limited operational characteristics and conditions. 3. As conditioned, the owners, managers, and employees selling alcohol are required to undergo and successfully complete a certified training program in responsible methods and skills for selling alcohol. 4. The Project does not propose live music or dancing. Condition of Approval No. 6 limits the hours of operation and Condition of Approval No. 10 prohibits live entertainment and dancing, respectively. Conditional Use Permit In accordance with Section 20.52.020(F) (Conditional Use Permits and Minor Use Permits – Findings and Decision) 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 category for the Property is CC (Corridor Commercial), which is intended to provide a range of neighborhood-serving retail and service uses along street frontages that are located and designed to foster pedestrian activity. The Project proposes to include lunch hour service at an existing restaurant that fronts East Coast Highway. 2. The existing restaurant is in a commercial area and is surrounded by retail commercial and professional office uses. Restaurant uses of this type with alcoholic beverages services are complementary to the surrounding commercial uses. The proposed change of hours and minor change to the seating plan serves to enhance the existing restaurant as an amenity to the area that is consistent with the underlying land use. 3. The Project is consistent with the following General Plan Land Use policies, applicable to the Project: a. Land Use Element Policy LU 1.5 (Economic Health). Encourage a local economy that provides adequate commercial, office, industrial, and marine- oriented opportunities that provide employment and revenue to support high- quality community services. The Project provides an expanded lunch option in the commercial corridor of Corona del Mar. The Project will also provide employment opportunities for restaurant employees. Planning Commission Resolution No. PC2023-027 Page 6 of 17 b. Land Use Policy LU 2.1 (Resident-Serving Land Uses). Accommodate uses that support the needs of Newport Beach’s residents including housing, retail, services, employment, recreation, education, culture, entertainment, civic engagement, and social and spiritual activity that are in balance with community natural resources and open spaces; and c. Land Use Element Goal LU 6.20. A pedestrian-oriented “village” serving as the center of community commerce, culture, and social activity and providing identity for Corona del Mar. The Project is located within the commercial district of Corona del Mar. The Property is a highly visible commercial building to visitors and residents traveling along Coast Highway East. The Project will provide an additional attraction for visitors to the Corona del Mar neighborhood and promote culture and social activity. 4. The Property is not a part of a specific plan area. Finding: C. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code. Facts in Support of Finding: 1. The Property is located in the CC (Corridor Commercial) zoning and coastal zoning districts, which intend to provide areas appropriate for a range of neighborhood-serving retail and service uses along street frontages that are located and designed to foster pedestrian activity. Eating and drinking establishments with alcohol service are allowed uses, subject to the approval of a use permit. The Project is an expansion of operating hours from 4 p.m. to 12 a.m., daily, to 11 a.m. to 12 a.m., daily, as well as a minor modification to the interior seating plan layout. 2. The Project will allow the existing restaurant to provide lunch service. The restaurant is located along the East Coast Highway street frontage and will serve as an additional attraction located in the commercial district of Corona del Mar. 3. The existing restaurant has operated under Use Permit No. 3564 and Site Plan Review No. 73, which was approved by the Planning Commission on August 10, 1995. The use permit authorized the construction of a new full-service restaurant with alcoholic beverage service and the waiver of 43 required on-site parking spaces. Since the Project does not modify the net public area, there is no change to the parking requirement. 4. A condition of approval was included in UP3564 which limited the hours of operation from 4 p.m. to 12 a.m., daily. The Project modifies the hours of operation to 11 a.m. to 12 a.m., daily, which does not conflict with the list of permitted uses for the Corridor Commercial (CC) zoning district. Restaurants are a permitted use and the applicant Planning Commission Resolution No. PC2023-027 Page 7 of 17 proposes to extend the hours of operation of an existing licensed restaurant to provide lunch service. 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. Commercial uses, including restaurants, are common along East Coast Highway in Corona del Mar and serve both visitors and residents. Conditions of approval are included to ensure that the Project is compatible with the land uses permitted within the surrounding neighborhood. 2. The Restaurant is located within an existing single-tenant commercial building and complements the existing mix of retail, service, and restaurant uses in the immediate area. 3. As conditioned, the Restaurant will operate between 11:00 a.m. and 12:00 a.m., daily. The proposed hours are no later than the hours approved by Use Permit No. 3564 and will allow for lunch service in addition to existing dinner service hours. The closing hours will help ensure there is no detriment to the adjacent residential neighborhood. 4. UP3564 included a waiver for on-site parking which was granted due to the site’s adjacency to two municipal parking lots. The municipal parking lots ensure adequate parking for this area of the Corona Del Mar commercial district. 5. The expansion of hours of operation is not anticipated to cause significant additional demand which would be incompatible with the surrounding neighborhood. Staff conducted site visits on two separate summer weekdays and observed that an average of two (2) of the 33 available parking spaces were occupied in the adjacent municipal lot on Bayside Drive, and an average of six (6) of 19 available parking spaces were occupied in the municipal lot on the corner of Larkspur Avenue and Bayside Drive between the two site visits. Additionally, public street parking is available on Larkspur Avenue (approximately 5 spaces), Bayside Drive (approximately 8 spaces), and East Coast Highway (3 striped spaces). 6. The NBPD has reviewed the Project and has no objections. The operational conditions of approval recommended by the NBPD related to the sale of alcoholic beverages 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. Planning Commission Resolution No. PC2023-027 Page 8 of 17 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 Project is located within an existing single-tenant restaurant building. The existing site development, including the building and the 23-space on-site parking lot, is in substantial conformance with the development approved with Use Permit No. 3564 and Site Plan Review No. 73. No modifications to the exterior of the building or site are proposed as part of this application. 2. The Applicant is required to obtain Orange County Health Department approval and comply with the Building Code to ensure the safety and welfare of customers and employees within the Restaurant. 3. No site modifications are proposed as part of the project that would alter or impede adequate public and emergency vehicle access, public services, and utilities are provided for the Property. 4. The tenant improvements to the Property will be reviewed to comply with all Building, Public Works, and Fire Codes. All City ordinances 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, nor endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Facts in Support of Finding: 1. As conditioned, the restaurant will operate between 11 a.m. and 12 a.m., Monday through Sunday. The proposed hours are no later than the hours approved by Use Permit No. 3564 and will allow for lunch service in addition to existing dinner service hours. The closing hours will help ensure there is no detriment to the adjacent residential neighborhood. 2. The Type 47 (On Sale General – Eating Place) ABC License will provide dining services as a public convenience to the surrounding residential neighborhood as well as to visitors. The service of alcohol will complement the principal use of the facility as a restaurant and provide an economic opportunity for the Owner to maintain a successful business in a way that best serves the community. Planning Commission Resolution No. PC2023-027 Page 9 of 17 3. As conditioned, the owners, managers, and employees selling alcohol are required to undergo and successfully complete a certified training program in responsible methods and skills for selling alcohol. 4. Fact 5 of Finding D is incorporated herein by reference. Coastal Development Permit In accordance with Section 21.52.015(F) (Coastal Development Permits) of the NBMC, the Planning Commission must make the following findings to approve a Coastal Development Permit (CDP) as follows: Finding: G. Conforms to all applicable sections of the certified Local Coastal Program. Facts in Support of Finding: 1. The Property is located in the CC coastal zoning district, allows for food service establishments within the coastal zone. 2. The existing restaurant was authorized by the Planning Commission through Use Permit No. 3564 and Site Plan Review No. 73. Subsequent to these approvals, a CDP was approved by the California Coastal Commission (CCC) on October 10, 1995, which states that a change in hours of operation requires an amendment to the CDP. Other than the proposed change in hours of operation and minor changes to the seat layout, the Project does not include any modifications that would expand the existing building or modify the existing site. 3. The Property is located on an inland property in a developed area approximately 1,300 feet from the Corona Del Mar State Beach. The Property is separated from the beach (the nearest body of water) by the residential neighborhood located between Bayside Drive and Ocean Blvd. The Property is not located adjacent to a coastal view road, public access way, or Coastal Viewpoint as identified in the Coastal Land Use Plan. The nearest coastal viewpoint is at Corona Del Mar State Beach and is not visible from the site. The proposed project does not include any modifications that would expand the existing building or modify the existing site in a way that would encroach into any viewshed of the beach. Additionally, the project does not contain any unique features that could degrade the visual quality of the coastal zone. Finding: H. 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. Planning Commission Resolution No. PC2023-027 Page 10 of 17 Facts in Support of Finding: 1. The project site is not 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 involves permitting of an existing commercial restaurant along Coast Highway East. Therefore, the project does not involve a change in land use, density, or intensity that will result in increased demand for public access and recreation opportunities. Furthermore, the project does not include any building or site modification that could block or impede existing public access opportunities. 2. Access to the beach is available to the southwest via Larkspur Avenue to Ocean Blvd and on to Corona Del Mar State Beach. The Project does not include any features that would obstruct access along these routes. 3. The Project includes an expansion of operating hours to include lunch service, where the existing operation only provides dinner. The hours of operation are proposed to be modified from 4 p.m. to 12 a.m., daily, to 11 a.m. to 12 a.m., daily. Although the Property is within the proximity of Corona del Mar State Beach, it is approximately 2,000 feet from the beach. There are multiple public parking options for visitors that are in closer proximity to the beach, such as the Corona del Mar State Beach parking municipal lot and street parking on Ocean Boulevard and other residential streets within Corona del Mar. The expansion of hours to allow for lunch service does not interfere with the overall parking supply for beach visitors. 4. Fact 5 of Finding D is incorporated herein by reference. 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 PA2023-0063, subject to the conditions set forth in Exhibit “B,” 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 is filed with the City Clerk in accordance with the provisions of Title 20 (Planning and Zoning), of the NBMC. Planning Commission Resolution No. PC2023-027 Page 11 of 17 4. This resolution supersedes Use Permit No. 3564 and Site Plan Review No. 73, which upon vesting of the rights authorized by PA2023-0063, shall become null and void. PASSED, APPROVED, AND ADOPTED THIS 6TH DAY OF JULY, 2023. AYES: Barto, Ellmore, Langford, Rosene, Harris, Salene, Lowrey NOES: None ABSTAIN: None ABSENT: None BY:_________________________ Curtis Ellmore, Chair BY:_________________________ Tristan Harris, Secretary DocuSign Envelope ID: E54BF468-D32A-4AFD-9B4B-845BEE0B05E5 Planning Commission Resolution No. PC2023-027 Page 12 of 17 EXHIBIT “A” LEGAL DESCRIPTION APN 459-194-01 Real Property situated in the County of Orange, State of California, described as follows: Parcel 1: Lots One (1) and Two (2) in Block “J” of “Tract No. 323”, as shown on a Map Recorded in Book 14, pages 40 and 41 of Miscellaneous Maps, records of Orange County, California. Parcel 2: All of those portions of Pacific Drive (formerly Electric Way) and Marguerite Avenue, as shown on the Map of “Tract No. 323” recorded in Book 14, pages 40 and 41 of Miscellaneous Maps, records of Orange County, California, abandoned by Resolution of the Board of Trustee of the City of Newport Beach on February 7th, 1927, described as beginning at the intersection of the South-easterly line of Larkspur Avenue and the North-easterly line of Pacific Drive; thence South 39° 38’ West along the South-easterly line of Larkspur Avenue a distance of 25.18 feet to a point; thence South 57° 13’ 45” East along a line, which line is 25 feet South- westerly of and parallel with the North-easterly line of Pacific Drive, a distance of 218.12 feet to a point; thence Easterly, North-easterly, Northerly and North-westerly around a circular curve with a radius of 20.13 feet concave to the North-west, a distance of 55.26 feet to a point in the South-westerly line of Coast Boulevard, which South-westerly line of Coast Boulevard is also the Northeasterly line of Lot Two (2) in Block “J” of said Tract No. 323; thence South-westerly, Southerly, South-westerly, Westerly and North-westerly along the North-easterly, Easterly, South-easterly and South-westerly line of said Lot Two (2) in Block “J”, and along the North- easterly line of Pacific Drive to the point of beginning. Planning Commission Resolution No. PC2023-027 Page 13 of 17 EXHIBIT “B” CONDITIONS OF APPROVAL (Project-specific conditions are in italics) Planning Division 1. The development shall be in substantial conformance with the approved site plan and floor plan stamped and dated with the date of this approval (except as modified by applicable conditions of approval). 2. The Project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 3. The 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 CUP. 4. This CUP 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. 5. Any change in operational characteristics, expansion in area, or other modification to the approved plans of the restaurant, shall require subsequent review and approval by the Planning Division. If deemed significant, an amendment to this CUP or the processing of a new use permit may be required. 6. The hours of operation shall be between 11:00 a.m. and 12:00 a.m., daily. All patrons shall leave the premises by the identified closing hour. 7. The interior net public area of the restaurant shall be limited to 3,190 square feet. 8. All employees shall park on-site. 9. Valet operations shall be prohibited unless an amendment to this use permit is approved by the Planning Commission. 10. There shall be no live entertainment or dancing on the premises. 11. A copy of the Resolution, including conditions of approval Exhibit “B” shall be incorporated into the Building Division and field sets of plans prior to issuance of the building permits. 12. The site 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 Planning Commission Resolution No. PC2023-027 Page 14 of 17 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 site is excessively illuminated. 13. 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. 14. All noise generated by the proposed use 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 15. 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. 16. 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 7:00 a.m. and 6:30 p.m., Monday through Friday, and 8:00 a.m. and 6:00 p.m. on Saturday. Noise-generating construction activities are not allowed on Saturdays, Sundays, or Holidays. 17. No outside paging system shall be utilized in conjunction with this establishment. 18. 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. 19. 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. 20. Storage outside of the building in the front or at the rear of the property shall be prohibited, with the exception of the required trash container enclosure. Planning Commission Resolution No. PC2023-027 Page 15 of 17 21. The exterior of the business shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. Graffiti shall be removed within 48 hours of written notice from the City. 22. 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). 23. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10:00 p.m. and 7:00 a.m. on weekdays and Saturdays and between the hours of 10:00 p.m. and 9:00 a.m. on Sundays and Federal holidays, unless otherwise approved by the Director of Community Development, and may require an amendment to this CUP. 24. A Special Events Permit is required for any event or promotional activity outside the normal operational characteristics of the approved use, as conditioned, or that would attract large crowds, involve the sale of alcoholic beverages, include any form of on-site media broadcast, or any other activities as specified in the NBMC to require such permits. 25. This approval shall expire and become void unless exercised within 24 months from the actual date of review authority approval, except where an extension of time is approved in compliance with the provisions of Title 20 Planning and Zoning of the Newport Beach Municipal Code. 26. 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 Bandera Restaurant including, but not limited to, PA2023-0063 This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorney’s 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, attorney’s 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. Planning Commission Resolution No. PC2023-027 Page 16 of 17 Building Division 27. 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. Police Department 28. The Alcoholic Beverage Control License shall be limited to a Type 47 (On Sale General – Eating Place). Any substantial change in the ABC license type shall require subsequent review and potential amendment of the Conditional Use Permit. 29. 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 is a violation and may be cause for revocation of the Conditional Use Permit. 30. All owners, managers and employees selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible beverage service within 60 days of hire. The certified program must meet the standards of the State of California. Records of each owner’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. 31. Approval does not permit the premises to operate as a bar, tavern, cocktail lounge or nightclub as defined by the Newport Beach Municipal Code. 32. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The licensee shall at all times maintain records, which reflect separately the gross sales of food and the gross sales of alcoholic beverages of the licensed business. These records shall be kept no less frequently than on a quarterly basis and shall be made available to the Police Department on demand. 33. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee. 34. No games or contests requiring or involving the consumption of alcoholic beverages shall be allowed. 35. Petitioner shall not share any profits or pay any percentage or commission to a promoter or any other person based upon monies collected as a door charge, cover charge, or any other form of admission charge, including minimum drink orders or the sale of drinks. 36. Any event or activity staged by an outside promoter or entity, where the applicant, operator, owner or his employees or representatives share in any profits, or pay any Planning Commission Resolution No. PC2023-027 Page 17 of 17 percentage or commission to a promoter or any other person based upon money collected as a door charge, cover charge or any other form of admission charge is prohibited. 37. “VIP” passes or other passes to enter the establishment, as well as door charges, cover charges, or any other form of admission charge, including minimum drink order of the sale of drinks is prohibited (excluding charges for prix fixe meals). 38. Strict adherence to maximum occupancy limits is required. 39. The applicant shall maintain a security recording system with a 30-day retention and make those recording available to police upon request. 40. There shall be no exterior advertising or signs of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages. Interior displays of alcoholic beverages or signs which are clearly visible to the exterior shall constitute a violation of this condition.