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HomeMy WebLinkAboutZA2025-039 - APPROVING A MINOR USE PERMIT FOR A TAKE-OUT SERVICE—FAST CASUAL EATING AND DRINKING ESTABLISHMENT LOCATED AT 226 MARINE AVENUE, UNIT A (PA2025-0038)RESOLUTION NO. ZA2025-039 A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH, CALIFORNIA APPROVING A MINOR USE PERMIT FOR A TAKE-OUT SERVICE—FAST CASUAL EATING AND DRINKING ESTABLISHMENT LOCATED AT 226 MARINE AVENUE, UNIT A (PA2025-0038) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Peter Klebanoff (Applicant) concerning property located at 226 Marine Avenue, Unit A, and legally described as Lot 13 of Block 11 of Section 4 of the Balboa Island Tract (Property), requesting approval of a minor use permit. 2. The Applicant proposes a gelato establishment (Take-Out Service—Fast Casual) within an existing 304-square-foot commercial suite. The applicant is proposing minor modifications to the interior of the suite. The sale of alcohol and late-hour operations (after 11:00 p.m.) are not proposed (Project). 3. The Property is located within the Mixed-Use Water (MU-W2) Zoning District and categorized as Mixed-Use Water 2 (MU-W2) by the General Plan Land Use Element. 4. The Property is located within the coastal zone, within the Mixed-Use Water (MU-W2) Coastal Zoning District and the Mixed-Use Water Related (MU-W) Coastal Land Use category. The Project does not result in an increase in parking intensity of the previous use; therefore, a coastal development permit (CDP) is not required for the Project. 5. On May 9, 2023, the City Council approved Ordinance No. 2023-6, amending Title 20 (Planning and Zoning) of the Newport Beach Municipal Code (NBMC) related to commercial parking. As a part of the ordinance, the land use category formerly known as “Take-Out Service, Limited”, which allowed for establishments that sells food or beverages primarily for off-site consumption and up to a maximum of six seats, was eliminated and replaced with the land use category “Take-Out Service – Fast Casual,” which is similar to “Take-Out Service, Limited,” except that it allows for a maximum of 20 seats instead of six. The City Council also simultaneously approved Resolution No. 2023-27, authorizing the submittal of the commercial parking amendment of Title 21 (Local Coastal Program Implementation Plan) to the California Coastal Commission. The amendment was approved by Coastal Commission without changes on June 12, 2025, and now requires Council adoption of an ordinance to finalize it. Per Title 20, the Project is categorized as a “Take-Out Service – Fast Casual” use. However, since it is located in the coastal zone, the Project will be regulated as the former Take-Out Service, Limited use (six seats maximum) until the amendment to Title 21 is formally adopted. Zoning Administrator Resolution No. ZA2025-039 Page 2 of 10 01-17-23 6. A public hearing was held on June 26, 2025, online via Zoom. A notice of the 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) under 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 authorizes minor alterations of existing structures involving negligible or no expansion of use. The Project is a gelato shop that involves alterations to the interior floor plan of an existing commercial space with no expansion in floor area. Therefore, the Class 1 exemption is applicable. SECTION 3. REQUIRED FINDINGS. In accordance 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: A. The use is consistent with the General Plan and any applicable specific plan. Facts in Support of Finding: 1. The Land Use Element of the General Plan designates this Property as Mixed-Use Water (MU-W2) which is intended to apply to waterfront locations in which marine-related uses may be intermixed with general commercial, visitor-serving commercial, and residential dwelling units on the upper floors. The Project is a take-out gelato shop with limited interior seating, which is a visitor-serving commercial use on Marine Avenue on Balboa Island. The Property is surrounded by similar and complementary uses such as retail sales, eating and drinking establishment, and professional offices. 2. The Property is not part of a specific plan area. Finding: B. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code. Zoning Administrator Resolution No. ZA2025-039 Page 3 of 10 01-17-23 Facts in Support of Finding: 1. The Property is located within the MU-W2 Zoning District. Table 2-9 of NBMC Section 20.22.020 (Mixed-Use Zoning Districts Land Uses and Permit Requirements) allows a Take-Out Service—Fast Casual use subject to approval of a minor use permit, if within 100 feet of a residential zoning district. A Take-Out Service—Fast Casual use is defined as an establishment that sells food or beverages, with the exception of alcohol, primarily for off-site consumption, where customers order and pay for food at either a counter or service window and up to a maximum of up to 20 seats including seats in interior areas and seats in outdoor dining areas are provided for on-site consumption of food or beverages. As discussed in Statement of Fact No. 5 above, the Project is limited to a maximum of six seats unless that limitation is otherwise amended. 2. The Property has legal, nonconforming residential parking due to having only two available garage parking spaces on site. There is no available parking for commercial use on site. NBMC Section 20.40.040 (Off-Street Parking Spaces Required) requires an off-street parking rate of one space per 250 square feet of gross floor area for a take- out service – fast casual use. The Project is proposed in a vacant tenant space that was previously occupied by a retail use which has the same parking requirement. Pursuant to NBMC Section 21.38.060 (Nonconforming Parking), a use with nonconforming parking may be changed to a new use allowed in that coastal zoning district without providing additional parking, no intensification or enlargement (e.g., increase in floor area, or lot area), and the new use requires a parking rate of no more than one space per 250 square feet of gross building area. The Project has an identical parking rate and does not increase in gross floor area; therefore, no additional parking is required. 3. As conditioned, the Project will comply with NBMC Section 20.48.090 (Eating and Drinking Establishments) which specifies standards for eating and drinking establishments. Additionally, the Project will be conditioned to provide a maximum of six seats for use by patrons as required for the former Take-Out Service, Limited use until the amendment to incorporate Take-Out Service – Fast Casual into Title 21 is adopted and made effective by the City Council. Finding: C. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity. Facts in Support of Finding: 1. The Project is compatible with the existing and allowed uses in the area, which consist of residential and commercial uses such as retail sales, eating and drinking establishments, and professional offices. The Property is located among other commercial uses along Marine Avenue with residential uses located directly across the alley behind the Property. Zoning Administrator Resolution No. ZA2025-039 Page 4 of 10 01-17-23 2. The Project includes an interior remodel and alteration of a 304-square-foot commercial suite with approximately 150 square feet proposed as a customer serving area. The size of the existing commercial suite will not increase as part of this Project. 3. The Project will be conditioned to provide adequate trash storage facilities in an enclosed area pursuant to NBMC Section 20.30.120 (Solid Waste and Recyclable Materials Storage), thereby preventing any odor or related issues for the adjacent properties. 4. Fact support of Finding B.2 is hereby incorporated as reference. 5. As conditioned, the hours of operation are from 10:00 a.m. to 10:00 p.m. Sunday to Thursday and 10:00 a.m. to 11:00 p.m. on Friday, Saturday, and holidays. These hours of operation will minimize any disturbance to residences near the property. Finding: D. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities. Facts in Support of Finding: 1. The Property is 2,250 square feet in area, rectangular in shape, and located in a commercial area with residential uses to the east across the rear alley. The Property has street access along Marine Avenue and alley access at the rear of the Property. Pedestrian access is available at the front of the Property along Marine Avenue and at the side of the Property along Balboa Avenue. 2. The Fire Department reviewed the Project to ensure adequate public and emergency vehicle access is provided. 3. The Public Works Department, Building Division, and Fire Department have reviewed the application. The Project is required to obtain all applicable permits from the City Building and Fire Departments and must comply with the most recent, City-adopted version of the California Building Code. Finding: E. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Zoning Administrator Resolution No. ZA2025-039 Page 5 of 10 01-17-23 Facts in Support of Finding: 1. The Project will add an additional take-out dessert option to Marine Avenue and occupy a commercial suite that is currently vacant. 2. The Project includes limited hours, no alcohol service, and is limited to a maximum of six indoor seats, unless the previously discussed parking amendment is adopted and made effective by the City Council. The Project meets the parking requirement pursuant to NBMC Section 21.38.060 (Nonconforming Parking) and there is not anticipated to be a significant impact or increase in demand for on-street parking in this area as a result of this Project. 3. Fact support of Finding C.3 is hereby incorporated as reference. 4. 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 Property and adjacent properties during business hours, if directly related to the patrons of the establishment. Based on the NBMC requirements and the proposed conditions of approval, the Project will not result in a detriment to the surrounding community. 5. The Applicant is required to obtain Health Department approval prior to opening for business, and to comply with the California Building Code to ensure the safety and welfare of customers and employees within the establishment. 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 under 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 Zoning Administrator of the City of Newport Beach hereby approves Minor Use Permit PA2025-0038, subject to the conditions outlined 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 a call for review is filed with the Community Development Director in accordance with the provisions of Title 20 Planning and Zoning of the Newport Beach Municipal Code (NBMC). Zoning Administrator Resolution No. ZA2025-039 Page 6 of 10 01-17-23 PASSED, APPROVED, AND ADOPTED THIS 26TH DAY OF JUNE, 2025. Zoning Administrator Resolution No. ZA2025-039 Page 7 of 10 01-17-23 EXHIBIT “A” CONDITIONS OF APPROVAL (Project-specific conditions are in italics) Planning Division 1. The Project 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 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. A material violation of any of those laws in connection with the use may cause the revocation of this Minor Use Permit. 4. All proposed signs shall be in conformance with provisions of Chapter 20.42 (Sign Standards) of the Newport Beach Municipal Code and any future approved Comprehensive Sign Program. 5. This Use Permit may be modified or revoked by the Zoning Administrator if determined that the proposed uses or conditions under which it is being operated or maintained are detrimental to the public health, welfare, or materially injurious to property or improvements in the vicinity or if the Property is operated or maintained to constitute a public nuisance. 6. Any change in operational characteristics, expansion in the area, or other modification to the approved plans, shall require review by the Planning Division. An amendment to this Use Permit or the processing of a new Minor Use Permit may be required. 7. A copy of the Resolution, including conditions of approval Exhibit “A” shall be incorporated into the Building Division and field sets of plans before issuance of the building permits. 8. The screening of roof-mounted and ground-mounted mechanical equipment shall be required in all zoning districts at the time of new installation or replacement in conformance with Newport Beach Municipal Code Section 20.30.020 (Buffering and Screening). 9. The Property shall not be excessively illuminated based on the luminance recommendations of the Illuminating Engineering Society of North America, or, in the opinion of the Director of Community Development, the illumination creates an unacceptable negative impact on surrounding land uses or environmental resources. Zoning Administrator Resolution No. ZA2025-039 Page 8 of 10 01-17-23 The Director of Community Development may order the dimming of light sources or other remediation upon finding that the Property is excessively illuminated. 10. Before 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. 11. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 (Community Noise Control), under Sections 10.26.025 (Exterior Noise Standards) and 10.26.030 (Interior Noise Standards), and other applicable noise control requirements of the Newport Beach Municipal Code (NBMC). 12. 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 leasing agent. 13. Construction activities shall comply with Section 10.28.040 (Construction Activity – Noise Regulations) of the Newport Beach Municipal Code, 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. Noise-generating construction activities are not allowed on Saturdays, Sundays, or Federal Holidays. 14. No outside paging system shall be utilized in conjunction with this establishment. 15. 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 the view of neighboring properties, except when placed for pick-up by refuse collection agencies. The trash enclosure shall have a decorative solid roof for aesthetic and screening purposes. 16. 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). 17. The Property shall be always maintained free of litter and graffiti. The owner or operator shall provide for daily removal of trash, litter debris, and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. 18. Storage outside of the building in the front or at the rear of the Property shall be prohibited, except for the required trash container enclosure. 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. Zoning Administrator Resolution No. ZA2025-039 Page 9 of 10 01-17-23 20. 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 Minor Use Permit. 21. A Special Events Permit is required for any event or promotional activity outside the normal operating 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. 22. 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 Newport Beach Municipal Code Section 20.54.060 (Time Limits and Extensions). 23. The allowed hours of operation for this establishment shall be limited to the hours of 10:00 a.m. to 10:00 p.m. Sunday to Thursday and 10:00 a.m. to 11:00 p.m. on Friday, Saturday, and Federal Holidays. 24. The sale, service, or consumption of alcohol shall not be permitted. 25. A maximum of six interior seats shall be allowed for the Project, until the City’s Local Coastal Program Implementation Plan amendment, as approved by the California Coastal Commission, is adopted and made effective by the City Council to allow a different number of interior seats for Take-Out Service– Fast Casual uses. 26. Employees of the restaurant shall not use the alley as a break or smoking area. 27. Drop-off and pick-up of employes shall be prohibited in the alley. 28. To the fullest extent permitted by law, the applicant shall indemnify, defend and hold harmless the City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any 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 Gelato Del Mar including, but not limited to, Minor Use Permit (PA2025-0038). 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 the applicant, City, and/or the parties initiating or bringing the such proceeding. The applicant shall indemnify the City for all the City's costs, attorneys' fees, and damages that which City incurs in enforcing the indemnification provisions outlined in this condition. The applicant shall pay to the City upon demand any amount owed to the City under the indemnification requirements prescribed in this condition. Zoning Administrator Resolution No. ZA2025-039 Page 10 of 10 01-17-23 Building Division 29. A building permit shall be required for change of use and/or occupancy. 30. A turning space at the entrance of the employee side of the counter shall be required.