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HomeMy WebLinkAboutPC2024-015 - APPROVING A CONDITIONAL USE PERMIT AND COASTAL DEVELOPMENT PERMIT TO EXPAND THE OUTDOOR DINING PATIO OF AN EXISTING RESTAURANT OPERATING WITH A TYPE 47 (ON-SALE GENERAL – EATING PLACE) ALCOHOL BEVERAGE CONTROL LICENSE SUPERCEDING USE PERMITRESOLUTION NO. PC2024-015 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING A CONDITIONAL USE PERMIT AND COASTAL DEVELOPMENT PERMIT TO EXPAND THE OUTDOOR DINING PATIO OF AN EXISTING RESTAURANT OPERATING WITH A TYPE 47 (ON- SALE GENERAL – EATING PLACE) ALCOHOL BEVERAGE CONTROL LICENSE SUPERCEDING USE PERMIT NO. UP2019- 35AND WAIVE A PORTION OF THE OFF-STREET PARKING REQUIREMENT FOR THE PROPERTY LOCATED AT 3107 NEWPORT BOULEVARD (PA2023-0141) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Boardwalk Investment Group (“Applicant”), with respect to property located at 3107 Newport Boulevard, and legally described as Parcel 1 of Parcel Map No. 2009-135, as per map filed in Book 371, Pages 4 through 6 of Parcel Maps, in the office of the County Recorder in the County of Orange, California ("Property") requesting approval of a conditional use permit and coastal development permit. 2. The Applicant proposes to expand the outdoor dining patio of an existing restaurant, Chihuahua Cerveza (“Restaurant”). The Restaurant currently operates with 1,213 square feet of interior net public area, 498 square feet of permanent outdoor dining patio, and 867 square feet of temporary outdoor dining patio. The Applicant will reconfigure the patio areas to create one 1,403-square-foot permanent, outdoor dining patio (“Project”). The Applicant requests to waive the additional parking spaces required for the patio expansion. Alcohol service would be extended to the entire outdoor dining patio through the Restaurant’s existing Type 47 (On Sale General – Eating Place) Alcoholic Beverage Control (“ABC”) license. Proposed hours of operation are from 6:30 a.m. to 10:00 p.m. Sunday to Thursday, and 6:30 a.m. to 11:00 p.m. Friday and Saturday, however the outdoor dining patio will close nightly at 10 p.m. The Restaurant is currently approved for live entertainment within the interior of the restaurant and no changes are proposed to the live entertainment. Approval of the Project would supersede Use Permit No. UP2019-035 (PA2019-160). 3. The Property is categorized as Neighborhood Commercial (CN) by the Land Use Element of the General Plan and is located within the Commercial Neighborhood (CN) Zoning District. 4. The Property is located within the coastal zone. The Property is categorized as Neighborhood Commercial (CN) (0.0 – 0.3 FAR) by the Coastal Land Use Plan and is located in the Commercial Neighborhood (CN) Coastal Zoning District. Docusign Envelope ID: 575E0F61-AC15-4F0C-98EC-3F10360B1D11 Planning Commission Resolution No. PC2024-015 Page 2 of 20 5. A public hearing was held on August 8, 2024, 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 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) 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 (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. 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 Project consists of the expansion of the outdoor dining patio of an existing restaurant to no more than 1,403 square feet within an urbanized area. The size of the expanded outdoor patio is well below the 10,000-square-foot floor area limitation for the Class 3 exemption. To construct the expanded outdoor patio, the Project will require minor alterations to the existing paved parking lot entirely within a privately owned shopping center. While the Project increases the size of the outdoor dining patio, the additional capacity is a negligible expansion of use in comparison to the surrounding shopping center. 3. The exceptions to these categorical exemptions 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, and is not a hazardous waste site, and is not identified as a historical resource. SECTION 3. REQUIRED FINDINGS. Alcohol Sales In accordance with Section 20.48.030(C)(3) (Alcohol Sales – Permit Requirements) of the NBMC, the findings and facts in support of such findings are set forth as follows: Docusign Envelope ID: 575E0F61-AC15-4F0C-98EC-3F10360B1D11 Planning Commission Resolution No. PC2024-015 Page 3 of 20 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 15 (“RD 15”). RD 15 is the highest crime area in Newport Beach and has significant quality-of-life concerns for the residents and the Newport Beach Police Department (“NBPD”). The RD’s Crime Count is 642, 444% over the citywide crime count average of 118. Since this area has a 20% 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 117% above the citywide average, RD 16 (37th Street to 54th Street) is 15% above, and RD 25 (north of Coast Highway between Newport Boulevard and Irvine Boulevard) is 31% above the citywide crime count average. RD 15 contains many visitor- and tourist-serving nonresidential uses along Newport Boulevard, including restaurants with alcohol service. The Restaurant is located within The Landing shopping center (“The Landing”), which includes a Pavilion’s grocery store, other eating and drinking establishments, retail, and service uses. Within The Landing, Chipotle Mexican Grill and Gina's Pizza provide alcohol service to patrons. Other nearby eating and drinking establishments such as Wild Taco, Helmsman Alehouse, Woody's Diner, Bear Flag Fish Company, Fable and Spirits, Malarky's, and Session's West Coast Deli also provide alcohol service to patrons. 2. The NBPD has reviewed the proposed outdoor patio expansion. Based on the location, operational characteristics, and closing hours, the NBPD has no objection to the proposed expansion of the outdoor patio for the existing Type 47 ABC License, subject to appropriate conditions of approval, which are included in Exhibit “A” 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. RD 15 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 aggravated assault. The highest volume arrest in the area is for disorderly intoxication. DUI, public intoxication, and liquor law violations make up 37% of arrests in this reporting district. However, the area is considered an attractive tourist area destination, which results in a higher number of alcohol-related calls for service, crimes and arrests. Docusign Envelope ID: 575E0F61-AC15-4F0C-98EC-3F10360B1D11 Planning Commission Resolution No. PC2024-015 Page 4 of 20 2. According to the NBPD memorandum, there were 25 calls for service to the Restaurant in 2022 and 27 in 2023. A review of all calls however revealed that most were not related to the Restaurant, rather the Restaurant’s address was used to geographically tag the general area. The calls reveal no concerns that would indicate poor business practices. No calls were due to the temporary patio currently in operation or a blatant over-consumption of alcoholic beverages. Therefore, the NBPD has no concerns with the proposed application. All conditions of approval provided by the NBPD have been incorporated into the Resolution. 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 abuts a residential district, the Property is situated in a commercial zoning district and within The Landing. Residential neighborhoods are located to the north, east, and south of The Landing. To the west, there are additional commercial uses. The Property is located approximately 800 feet from St. James Church on 32nd Street, approximately 1,000 feet from 38th Street Park, and approximately 750 feet from the beach. Due to the distances to these locations, the Restaurant’s expansion is not expected to negatively impact these uses where minors are present. 2. The Project is not in proximity to a daycare center, recreational facility, school, or similar uses that attract minors. iv. The proximity to other establishments selling alcoholic beverages for either off-site or on- site consumption. 1. The Property is located in Census Tract 635, which has 71 active retail alcohol licenses and a population of approximately 4,938 residents. This represents a per capita ratio of one license for every 70 residents. Orange County has a per capita ratio of one license for every 557 residents. Because the Tract exceeds the ratio of on-sale retail licenses to population for the County, the area is deemed to have an undue concentration of alcohol licenses. However, it is noted that concentration levels have decreased in the census tract since the business was first granted an ABC Type 47 License in 2020, when there were 88 active retail alcohol licenses and a per capita ratio of one license for every 65 residents. 2. Several other establishments along Newport Boulevard currently have active ABC Licenses, most of which are for bona fide eating and drinking establishments and are not defined as bars, lounges or nightclubs by the NBMC. The closest establishment selling alcoholic beverages for on-site consumption is Chipotle located at 3101 Newport Boulevard, which is directly next to the Restaurant. Chipotle has a Type 41 (On-Sale Beer and Wine - Eating Place) ABC license. Docusign Envelope ID: 575E0F61-AC15-4F0C-98EC-3F10360B1D11 Planning Commission Resolution No. PC2024-015 Page 5 of 20 3. The Project’s proximity to other establishments selling alcohol does not raise concern due to the limited characteristics of the use. Condition of Approval No. 55 requires the quarterly gross sales of alcoholic beverages to not exceed the gross sales of food during the same period and Condition of Approval No. 54 explicitly prohibits 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 Orange 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 maintain 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. The Landing has historically provided restaurant spaces and there are no objectionable conditions presently occurring at the Property. On one occasion during the COVID-19 pandemic, the Restaurant was found to be in violation of social distancing requirements. However, the Restaurant amended their emergency temporary use permit to relocate their dining area and cooperated with the City to comply with social distancing requirements in place at the time. There is no evidence that suggests the expanded patio will create objectionable conditions. 2. The Project has been reviewed by the NBPD. The NBPD has provided conditions of approval related to alcohol service. The conditions of approval help to ensure that the purpose and intent of Section 20.48.030 (Alcohol Sales) of the NBMC is maintained and that a healthy environment for residents and businesses is preserved. The NBPD does not anticipate detrimental conditions due to the proposed limited operational characteristics and conditions. 3. Condition of Approval No. 53 requires the owners, managers, and employees selling alcohol undergo and successfully complete a certified training program in responsible methods and skills for selling alcohol. This should help ensure that no patron is overserved and that objectionable conditions are avoided. 4. The Project does not propose any modifications to previous conditions of approval imposed for live entertainment. Conditions of Approval No. 11 through 18 of this resolution continue to limit the hours of operation, number of entertainers, restrict entertainment to interior only, and prohibit dancing. Docusign Envelope ID: 575E0F61-AC15-4F0C-98EC-3F10360B1D11 Planning Commission Resolution No. PC2024-015 Page 6 of 20 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 Property is categorized as Neighborhood Commercial (CN) by the Land Use Element of the General Plan. CN designation is intended to provide for a limited range of retail and service uses developed in one or more distinct centers oriented to primarily serve the needs of nearby residents and maintain compatibility with residential uses in the immediate area. 2. The Project is an expansion of the outdoor patio of an existing Restaurant. Eating and drinking establishments with alcohol service are consistent with the CN designation. The Restaurant will continue to provide a service to the surrounding neighborhood that residents can easily access, and the expanded patio will help maintain the operation of a vibrant commercial asset within the area. 3. Condition of Approval No. 6 requires the indoor dining area close by 10:00 p.m. on Sunday through Thursday, and 11:00 p.m. on Friday and Saturday with the outdoor patio closing by 10:00 pm, nightly. These closing times are not considered late hours. By forgoing late hours, the use should be compatible with adjacent residential units and the nearby neighborhood. 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 Commercial Neighborhood (CN) Zoning District and coastal zoning districts, which are intended to provide for areas appropriate for a limited range of retail and service uses developed in one or more distinct centers oriented to serve primarily the needs of and maintain compatibility with residential uses in the immediate area. Eating and drinking establishments with alcohol service are allowed uses, subject to the approval of a use permit. Docusign Envelope ID: 575E0F61-AC15-4F0C-98EC-3F10360B1D11 Planning Commission Resolution No. PC2024-015 Page 7 of 20 2. The Restaurant offers both alcohol service and live entertainment. Pursuant to Section 5.25 (Operator License for Establishments Offering Alcoholic Beverages for On-Site Consumption in Combination with Late Hours, Entrainment, and/or Dance) of the NBMC, the business is required to obtain an operator license. The Restaurant obtained an operator license pursuant to Conditional Use Permit No. UP2019-035 (PA2019-160). Condition of Approval No. 67 allows the current operator’s license to be updated at the discretion of the Chief of Police or the Community Development Director. 3. On May 23, 2023, the Newport Beach City Council adopted Ordinance No. 2023-6, which amended the parking standards citywide, including Section 20.40.050 (Parking Requirements for Shopping Centers) of the NBMC and Resolution No. 2023-27 which amended the parking standards within the coastal zone. However, these new standards are pending review with the California Coastal Commission and have yet to be adopted as part of Title 21 (Local Coastal Program Implementation Plan) of the NBMC. Therefore, parking requirements were calculated based on the rates and standard in effect prior to adoption of Ordinance No. 2023-6 and Resolution No. 2023-27. 4. Related to NBMC mandated parking requirements, Facts 1 through 5 in support of Finding G are incorporated by reference. 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 Project involves an existing restaurant located within an existing shopping center known as The Landing. The expanded patio does not introduce a new use and will complement the existing mix of retail, service, and restaurant uses in the immediate area. 2. The Restaurant is in a suite within The Landing oriented toward 32nd Street. There are residential units located north of 32nd Street which could be impacted by noise from the Restaurant. However, the outdoor dining patio is buffered from the residential units by The Landing’s parking lot and the width of 32nd Street, a distance of over 210 feet. Live entertainment is restricted to the interior of the Restaurant to prevent excess noise from impacting nearby residential uses and Condition of Approval No. 18 requires the windows be closed during performances. 3. The design of the outdoor dining patio complements the existing architecture of The Landing, including the scale of the structure and materials and colors chosen for the construction. 4. Fact 2 in support of Finding A(v) is herein incorporated by reference. 5. Fact 3 in support of Finding B is herein incorporated by reference. Docusign Envelope ID: 575E0F61-AC15-4F0C-98EC-3F10360B1D11 Planning Commission Resolution No. PC2024-015 Page 8 of 20 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 Landing includes a large, centrally located, surface parking lot that serves all tenants within the center. Modifications to the parking lot will meet city standards for parking space size and configuration and will provide adequate access and accessibility compliant with the California Building Code. 2. The Applicant is required to obtain Orange County Health Department approval to ensure the safety and welfare of customers and employees. 3. The Project was reviewed by the Fire, Public Works and Building Departments. It was determined that adequate public and emergency vehicle access is provided. 4. The Project was reviewed by the Public Works Department. It was determined that adequate public services and utilities are provided to the Property. Any additional utilities upgrades required for the change in occupancy will be required at plan check for the building permit. 5. 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. The Restaurant and outdoor patio are oriented toward 32nd Street. While there are residential units located across 32nd Street, the outdoor dining area will be buffered by The Landing’s parking lot and the street. The restaurant and outdoor patio are not oriented toward the residential uses abutting the Property, which are behind Pavilion’s. to the southwest. The other abutting use is Malarky’s Irish Pub. 2. The Project includes conditions of approval to help ensure potential conflicts with the surrounding land uses are minimized to the greatest extent possible. For example, Conditional of Approval No. 14 requires that all live entertainment be acoustic only and it explicitly prohibits DJs. Docusign Envelope ID: 575E0F61-AC15-4F0C-98EC-3F10360B1D11 Planning Commission Resolution No. PC2024-015 Page 9 of 20 3. Condition of Approval No. 69 requires the operator take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks and areas surrounding the Property and adjacent properties during business hours, if directly related to the patrons of the establishment. 4. The restaurant provides dining services as a public convenience to the surrounding residential neighborhood as well as to visitors. The service of alcohol complements 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. 5. Fact 3 in support of Finding B is herein incorporated by reference. 6. Fact 3 in support of Finding A(v) is herein incorporated by reference 7. Fact 5 in support of Finding D is herein incorporated by reference Off-Street Parking Reduction In accordance with Section 21.40.110 (Adjustments to Off-Street Parking Requirements) of the NBMC, 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) of the NBMC. The following findings and facts in support of such findings are set forth: 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); Facts in Support of Finding: 1. Under existing conditions, the Restaurant requires 43 parking spaces, at a parking rate of one space per 40 square feet of net public area and for their outdoor patio (1,719I 40 = 42.97). With the proposed expansion, the Restaurant requires 58 parking spaces. This parking requirement is set by using a rate of one space required per every 40 gross square feet of net public area (2,313 / 40 = 57.82), as provided in Table 21.40-1 (Off- Street Parking Requirements) of Section 21.40.040 (Off-Street Parking Spaces Required) and Section 21.40.050(C) (Parking Requirements for Shopping Centers) of the NBMC. 2. There are a variety of existing uses within The Landing, which include multiple eating and drinking establishments, retail stores, a grocery store, a nail salon, and a bank. The gross floor area of eating and drinking establishments within The Landing exceed 15% of the overall gross floor area. Per Section 21.40.050 (Parking Requirements for Shopping Centers) of the NBMC, shopping centers where eating and drinking establishments occupy more than 15% of the gross floor area of the center shall use a Docusign Envelope ID: 575E0F61-AC15-4F0C-98EC-3F10360B1D11 Planning Commission Resolution No. PC2024-015 Page 10 of 20 parking requirement equal to the sum of the requirements prescribed for each use in the shopping center. Parking requirements calculated for each individual use results in a parking requirement of 276 parking spaces, resulting in an overall deficit of 52 parking spaces (276 - 224 = 52). 3. To help offset some of the parking lost to the expanded outdoor patio, Condition of Approval No. 19 requires that the Applicant stripe two additional parking spaces behind the Pavilion’s grocery store. 4. To permit the Project, a parking waiver of 52 spaces is required. This waiver includes all spaces waived through previous approvals and the additional physical spaces lost to the patio expansion, the additional code-required parking for the expanded outdoor dining patio, and parking spaces that have been lost through the installation of shopping cart corrals by Pavilions. . 5. A parking study, dated July 9, 2024, has been provided by RK Engineering Group, Inc (“Parking Study"). The Parking Study establishes a parking demand by providing parking counts during typical off-season operations and weather conditions on a Thursday, Friday, and Saturday. The observed peak parking demand occurred on Saturday, November 19, 2022, where approximately 137 parking spaces out of 224 available spaces were occupied (61%utilization). During the summer, parking on the Balboa Peninsula is heavily impacted with beach visitors. However, the shopping center actively enforces a "no beach parking" policy and regularly tows violators from the parking lot, which mitigates the impacts during peak seasons. The Project is located close to the beach, which typically generates higher volumes of patrons who travel to the shopping center by means of rideshare, walking or bicycling. 6. The Parking Study concludes that on-site parking provided in The Landing is adequate to accommodate the Project. However, in compliance with Section 21.40.110(C) (Adjustments to Off-Street Parking Requirements – Parking Management Plan) of the NBMC, a parking management plan has been prepared in case the Project’s parking supply needs to be better utilized. The plan includes future considerations for providing a dedicated rideshare pick up and drop off area, setting parking duration limits and enforcement through a parking patrol service, providing secure bicycle parking, and encouraging employees to park away from entrances to restaurants and shops. If necessary, The Landing will provide a valet service during days and hours of high parking demand. Finding: H. A parking management plan shall be prepared in compliance with subsection (C) of this section (Parking Management Plan). Fact in Support of Finding: While the Parking Study concludes that on-site parking provided at The Landing is adequate to accommodate the Project. A parking management plan has been prepared Docusign Envelope ID: 575E0F61-AC15-4F0C-98EC-3F10360B1D11 Planning Commission Resolution No. PC2024-015 Page 11 of 20 in compliance with Section 21.40.110(C) (Adjustments of Off-Street Parking Requirements – Parking Management Plan) of the NBMC, in case the site's parking supply needs to be better utilized. The plan includes future considerations for providing a dedicated rideshare pick up and drop off area, setting parking duration limits and enforcement through a parking patrol service, providing secure bicycle parking, and encouraging employees to park away from entrances to restaurants and shops. If necessary, The Landing will provide a valet service during days and hours of high parking demand. Coastal Development Permit In accordance with Section 21.52.015(F) (Coastal Development Permits – Finding and Decision) of the NBMC, the Planning Commission must make the following findings to approve a Coastal Development Permit (“CDP”) as follows: Finding: I. Conforms to all applicable sections of the certified Local Coastal Program. Facts in Support of Finding: 1. Pursuant to Section 21.20.020 (Commercial Coastal Zoning District Land Uses, Table 21.20-1) of the Implementation Plan, eating and drinking establishments with no late hours are allowed in the Commercial Neighborhood (CN) Coastal Zoning District. 2. The Project consists of expansion of an existing permitted restaurant in an established commercial shopping center. 3. The Restaurant, along with The Landing, provides visitor-serving uses that serve beach visitors along the area. Since the existing parking lot is sufficient for the observed parking demand, the expansion of the outdoor dining patio is not expected to generate parking spill over into public streets or impact public parking for beach visitors. 4. The Property is located approximately 150 feet south from a public beach access location identified by the Coastal Land Use Plan. However, the Project is located within an existing shopping center and consists of expansion of the existing outdoor dining patio into the adjacent parking lot in front of the restaurant. There are no impacts to public access to the beach. Finding: J. 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. Docusign Envelope ID: 575E0F61-AC15-4F0C-98EC-3F10360B1D11 Planning Commission Resolution No. PC2024-015 Page 12 of 20 Facts in Support of Finding: 1. 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 viewpoints are located along the West Lido Channel and are not visible from the site. The Project does not include any modifications that would 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 would degrade the visual quality of the coastal zone. 2. The Landing is approximately 475 feet from the ocean. There are multiple public parking options for visitors that are in closer proximity to the Project, such as the public parking lots along Newport Boulevard, street parking on Newport Boulevard, and other residential streets within the immediate area. As previously discussed, the expansion creates an additional 21-space parking deficit for The Landing, which is adequately addressed by the submitted Parking Study. The anticipated parking demand is expected to be accommodated on-site and would not impact surrounding public street parking in the area, thereby avoiding potential impacts to coastal access 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) and 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 Planning Commission of the City of Newport Beach hereby approves PA2023-0141, 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 is filed with the City Clerk in accordance with the provisions of Title 20 (Planning and Zoning) and Title 21 (Local Coastal Program) of the NBMC. 4. This resolution supersedes Conditional Use Permit No. 2019-035 and Coastal Development Permit No. CD2020-001 (PA2019-160), which upon vesting of the rights authorized by PA2023-0141, shall become null and void. Docusign Envelope ID: 575E0F61-AC15-4F0C-98EC-3F10360B1D11 Planning Commission Resolution No. PC2024-015 Page 13 of 20 PASSED, APPROVED, AND ADOPTED THIS 8TH DAY OF AUGUST, 2024. AYES: Ellmore, Langford, Rosene, and Salene NOES: None ABSTAIN: None ABSENT: Barto, Harris, and Lowrey BY:_________________________ Curtis Ellmore, Chair BY:_________________________ Seimone Jurjis, Ex-Officio Secretary Docusign Envelope ID: 575E0F61-AC15-4F0C-98EC-3F10360B1D11 Planning Commission Resolution No. PC2024-015 Page 14 of 20 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 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 and CDP 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 and CDP or the processing of a new permit may be required. 6. The hours of operation shall be 6:30 a.m. to 10:00 p.m., Sunday through Thursday, and 6:30 a.m. to 11 :00 p.m., Friday and Saturday for the interior. The hours of operation for the exterior patio shall be 6:30 a.m. to 10:00 p.m., daily. 7. Alcohol shall not be served before 9:00 a.m. daily. 8. The interior net public area of the restaurant shall be limited to 1,213 square feet. 9. The exterior patio shall be limited to 1,403 square feet. 10. The bar counter shall have a maximum of 15 seats. 11. The restaurant, including but not limited to all dining areas, bar area, and outdoor dining patio, shall have a maximum of 144 seats. 12. Live entertainment shall be limited to the hours of 7:00 p.m. to 9:00 p.m. on Tuesdays and Saturdays. Docusign Envelope ID: 575E0F61-AC15-4F0C-98EC-3F10360B1D11 Planning Commission Resolution No. PC2024-015 Page 15 of 20 13. There shall be a maximum of two performers at any given time. 14. All live entertainment performances shall be acoustic only and shall not be amplified in any form. There shall be no DJ present at any time. 15. There shall be no dancing. 16. There shall be no stage constructed. Performances shall not block exit paths of travel. 17. Live entertainment shall be limited to the interior of the restaurant only. No performances shall occur outside of the restaurant, including within the outdoor dining patio area. 18. All windows and doors shall remain closed during performances. 19. The Applicant shall construct two additional off-street parking spaces within Zone 4 of The Landing shopping center parking lot, as shown in Exhibit B-2 of the Parking Study prepared by RK Engineering Group, Inc., dated July 9, 2024. 20. 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. 21. 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 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. 22. 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. 23. Exterior entrances to the outdoor dining patio shall be gated in compliance with Alcoholic Beverage Control (ABC) regulations. 24. 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. 25. 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. 26. 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. Docusign Envelope ID: 575E0F61-AC15-4F0C-98EC-3F10360B1D11 Planning Commission Resolution No. PC2024-015 Page 16 of 20 on Saturday. Noise-generating construction activities are not allowed on Sundays or Holidays. 27. No outside paging system shall be utilized in conjunction with this establishment. 28. 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. 29. 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. 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. 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. 32. 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). 33. 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. 34. 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. 35. 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. 36. 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 Docusign Envelope ID: 575E0F61-AC15-4F0C-98EC-3F10360B1D11 Planning Commission Resolution No. PC2024-015 Page 17 of 20 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 Chihuahua Cerveza Patio Expansion including, but not limited to, PA2023-0141. 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. Building Division 37. 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. 38. The Applicant shall provide the required number of accessible parking spaces based on the total number of parking spaces provided in the parking lot. (11B-208.2 CBC 2022). 39. Exits separation shall comply with CBC 1007.1.1. 40. The Applicant shall provide an accessible path of travel from parking and public right of way to the TI space (11B-202.4 CBC 2022). 41. Where provided, at least one of each type of sales counter and service counter shall comply with Section 11B-904.4. Where counters are dispersed throughout the building or facility, counters complying with Section 11B-904.4 also shall be dispersed. (CBC 11B- 227.3). 42. A portion of the counter surface that is 36 inches (914 mm) long minimum and 34 inches (864 mm) high maximum above the finish floor shall be provided. A clear floor or ground space complying with Section 11B-305 shall be positioned for a parallel approach adjacent to the 36 inch (914 mm) minimum length of counter (CBC 11B-904.4.1). 43. Provide 5% minimum of one accessible seat for each type of seating. 44. Where food or drink is served for consumption at a counter exceeding 34 inches (864 mm) in height, a portion of the main counter 60 inches (1525 mm) minimum in length shall be provided in compliance with Section 11B-902.3. (CBC 11B-226.3) Fire Department Docusign Envelope ID: 575E0F61-AC15-4F0C-98EC-3F10360B1D11 Planning Commission Resolution No. PC2024-015 Page 18 of 20 45. The patio shall have two exits. Exits cannot enter back into the building and shall exit to the public way. 46. Extending assembly use to the exterior may require fire sprinklers to extend to the patio area. The new exterior trellis shall be submitted to NBFD for review. Public Works Department 47. Substantial barriers (K-rail or water filled barricades) shall be provided between the seating area, drive aisle and adjacent parking spaces. Substantial barriers shall not encroach into the required dimensions of the drive aisle and adjacent parking spaces. 48. There shall be a minimum 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. 49. Seating or structures below overhead conductors and/or under the “drip line” shall be prohibited. 50. Public eating/dining at tables shall not be situated on top of energized vault lids, energized underground structures, or next to vent pipes, etc. 51. Expanded outdoor dining area shall adhere to the SCE clearance Decal examples provided in Attachment No. ZA 4 (See Emergency Limited Term Permit Extension PA2022-0275. Police Department 52. 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. 53. 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. 54. 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. This training must be updated every three 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. Docusign Envelope ID: 575E0F61-AC15-4F0C-98EC-3F10360B1D11 Planning Commission Resolution No. PC2024-015 Page 19 of 20 55. Approval does not permit the premises to operate as a bar, tavern, cocktail lounge or nightclub as defined by the Newport Beach Municipal Code. 56. 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. 57. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee. 58. The full menu food service shall be available for ordering at all times that the restaurant establishment is open for business. 59. There shall be no reduced-price alcoholic beverage promotions after 9:00 p.m. 60. No games or contests requiring or involving the consumption of alcoholic beverages shall be allowed. 61. The applicant shall install and maintain a physical barrier to the outdoor patio between any area used and adjacent common pedestrian walkways in accordance with the requirements of the State Department of Alcoholic Beverage Control. 62. 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. 63. 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. 64. 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 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. 65. “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). 66. Strict adherence to maximum occupancy limits is required. Docusign Envelope ID: 575E0F61-AC15-4F0C-98EC-3F10360B1D11 Planning Commission Resolution No. PC2024-015 Page 20 of 20 67. The applicant shall maintain a security recording system with a 30-day retention and make those recording available to police upon request. 68. An Operator License is required pursuant to Chapter 5.25 of the NBMC. At the discretion of the Chief of Police or the Community Development Director, the current OL may be subject to amendment for additional and/or more restrictive conditions (such as a security plan) to regulate and control potential nuisances associated with the operation of the establishment. 69. 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. 70. The operator shall 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. Docusign Envelope ID: 575E0F61-AC15-4F0C-98EC-3F10360B1D11