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2015-33 (EG)RESOLUTION NO. PC 2015 -33 A RESOLUTION OF THE CITY OF ENCINITAS PLANNING COMMISSION APPROVING A RESTAURANT WITH EXTERIOR FAQADE IMPROVEMENTS AND THE ON -SITE CONSUMPTION OF BEER AND WINE FOR A SITE LOCATED AT 540 NORTH COAST HIGHWAY 101. (CASE NO. 15 -136 MIN /ADR/CDP; APN: 258 - 081 -36) WHEREAS, Bird's Eye Kitchen submitted an application for a Minor Use Permit and a Administrative Design Review Permit, to authorize the sale of beer and wine for on -site consumption of a proposed restaurant and exterior fagade improvements, located at 540 N. Coast Highway 101, legally described in Exhibit A; WHEREAS, the Planning Commission conducted a duly noticed public hearing on November 19, 2015; NOW, THEREFORE, BE IT RESOLVED that the Encinitas Planning Commission hereby APPROVES Case No. 15 -136 MIN /ADR/CDP based on the following Environmental Determination and Findings: Section 1. California Environmental Quality Act Determination The project has been determined to be exempt from environmental review pursuant to California Environmental Quality Act (CEQA) Guidelines Section 15301(a). Section 15301(a) exempts interior or exterior alterations involving such things as interior partitions, plumbing and electrical conveyances. The proposed restaurant project meets these criteria. None of the exceptions in Section 15300.2 of the CEQA Guidelines exist. Section 2. Discretionary Action(s) Findings Based on Encinitas Municipal Code Section 30.74.070, findings for a Minor Use Permit, staff has made the following findings to support the approval, with conditions: Findings for a Use Permit Ex lanatron` of Fin in 1. The location, size, design or operating The proposed restaurant is located on a characteristics of the proposed project developed commercial site along the North will be incompatible with or will Coast Highway 101 Corridor. All public adversely affect or will be materially facilities, services and utilities are in place to detrimental to adjacent uses, serve the proposed project. residences, buildings, structures or natural resources, with consideration given to, but not limited to: a. The inadequacy of public facilities, services and utilities to serve the proposed project, Findings for a Use Permit Explanation of Finding b. The unsuitability of the site for the A diversity of commercial uses is located type and intensity of use or adjacent to the proposed restaurant with on- development which is proposed, site alcohol sales. The project operational and characteristics have been evaluated with other alcohol serving establishments in the neighborhood. The surrounding restaurants directly adjacent to the project have a Type 47 ABC license with longer operating hours. the use is similar to or less intensive to other uses within the surrounding neighborhood. The closest residence development is located to the west of commercial suite, approximately 60 feet from the rear portion of the building. Access is available from the westerly building, but it does not have any other existing or proposed openings. Operable windows facing North Coast Highway 101 are proposed on the front of the building, but should not adversely affect the adjacent residential neighborhood as conditioned. c. The harmful effect, if any, upon The restaurant is proposed within an existing environmental quality and developed commercial suite and site. The natural resources of the City; location of the restaurant with alcohol use, will not have a harmful effect on the environmental quality and natural resources of the City, and has been determined to be exempt from CEQA. 2. The impacts of the proposed project Section 3.1.2A2 of the North 101 Corridor will adversely affect the policies of Specific Plan permits a restaurant with alcohol the Encinitas General Plan or the sales, with the issuance of a Minor Use provisions of this Code; or Permit. The restaurant with alcohol sales with the proposed operational characteristics has been analyzed with surrounding commercial and residential conditions, and been determined that will not adversely affect any policies of the Encinitas General Plan or provisions of the North 101 Corridor Specific Plan or Municipal Code, as conditioned. 3. The project fails to comply with any As conditioned, the project as proposed will other regulations, conditions or comply with all requirements of the North 101 policies imposed by this Code. Specific Plan and Municipal Code. The project will be subject to all limitations of the Operational Management Plan and Chapter 30.40 (Noise Performance Standards). Based on Encinitas Municipal Code Section 23.08.080, findings for a Design Review Permit, staff has made the following findings to support the approval, with conditions: Findings for a Design Review Permit Explanation of Finding a. The project design is inconsistent with the The project is consistent with the General General Plan, a Specific Plan or the Plan, Specific Plan, and Municipal Code. The provisions of this Code. community character is maintained while allowing creativity and individuality. The pedestrian environment is improved and all development standards are met. b. The project design is substantially The building design is consistent with the inconsistent with the Design Review design recommendations as it relates to Guidelines. storefront rehabilitation recommendations of the North 101 Corridor Specific Plan. The fagade design meets the intent of the North 101 Corridor Specific Plan by maintaining and enhancing pedestrian orientation and visibility, while maintaining a village scale. c. The project would adversely affect the A restaurant with alcohol sales is permitted with health, safety, or general welfare of the the issuance of a Minor Use permit within the N- community. CM -1 Zone. No evidence has been provided or is evident indicating that the proposed project would adversely affect the surrounding neighborhood or community. All services are in place to serve the subject property. The project is exempt from the requirements of CEQA. d. The project would tend to cause the The design of the proposed project is surrounding neighborhood to depreciate compatible with the surrounding types of materially in appearance or value. structures and uses. The physical improvements include natural, quality materials that complement the existing and surrounding properties. No evidence has been identified or received indicating that the proposed project would cause the surrounding neighborhood to depreciate materially in appearance or value. Based on Encinitas Municipal Code Section 30.80.090, findings for a Coastal Development Permit, staff has made the following findings to support the approval, with conditions: Finding for a Coastal Development Permit Explanation of Finding 1. The proposed project is consistent with A Minor Use Permit, Administrative Design the certified Local Coastal Program of Review Permit and Coastal Development the City of Encinitas. Permit are proposed for a Type 41-beer and wine license to serve beer and wine and for 2. The proposed development conforms minor exterior facade alterations to the with Public Resources Code Section building. The project conforms to the 21000 and following (CEQA) and that Municipal Code, North 101 Corridor Specific there are no feasible mitigation Plan and policies of the General Plan. The measures or feasible alternatives project as proposed complies with applicable available which would substantially development standards for the subject N-CM-1 lessen any significant adverse impact zone. The project is determined to be exempt that the activity may have on the from environmental review. environment. The project site is located on North Coast Highway 101 between Basil Street and Athena 3. For projects involving development Street, which is not between the first public between the sea or other body of water road and the sea. and the nearest public road, approval shall include a specific finding that such development is in conformity with the public access and public recreation policies of Section 30200 et seq. of the Coastal Act. The above environmental determination and findings are supported by the minutes, maps, and exhibits, all of which are herein incorporated by reference. BE IT FURTHER RESOLVED that based on the Environmental Determination and Findings hereinbefore adopted by the Planning Commission, Case No. 15-136 MIN/ADR/CDP is hereby subject to the conditions in Exhibit B. PASSED AND ADOPTED this 19th day of November, 2015 by the following vote, to wit: AYES: O'Grady, Boemer Horvath, Brandenberg, Flores and Drakos NOES: None ABSTAIN: None ABSENT: None A Michael Glenn O'Grady, Cha?r 5 ATTEST: Manjeet Ranu, AICP Secretary EXHIBIT "A" Resolution No. PC 2015 -33 Case No. 15 -136 MIN /ADR/CDP LEGAL DESCRIPTION All of Lots 1 and 2 together with that portion of Lot 8 in Block "C" of South Coast Park No. 3, in the City of Encinitas, County of San Diego, State of California, According to Map Thereof No. 1935, filed in the Office of the County Recorder of San Diego County, August, 17, 1926, and more fully described in the Grant Deed Document No. 2007 - 0037608 recorded on January 18, 2007 with the San Diego County Recorder. EXHIBIT "B" Resolution No. PC 2015 -33 Case No. 15 -136 MIN /ADRICDP Applicant: Bird's Eye Kitchen, Inc. Location: 540 North Coast Highway 101 (APN: 258 - 081 -36) SC1 SPECIFIC CONDITIONS: SC2 At any time after two years from the date of this approval, on November 19, 2017 at 5:00 pm, or the expiration date of any extension granted in accordance with the Municipal Code, the City may require a noticed public hearing to be scheduled before the authorized agency to determine if there has been demonstrated a good faith intent to proceed in reliance on this approval. If the authorized agency finds that a good faith intent to proceed has not been demonstrated, the application shall be deemed expired as of the above date (or the expiration date of any extension). The determination of the authorized agency may be appealed to the City Council within 15 days of the date of the determination. SC5 This project is conditionally approved as set forth on the application and project drawings stamped received by the City on October 29, 2015, consisting of 6 sheets including an existing site plan, proposed site plan, floor plan (2 Sheets) and exterior elevations (2 Sheets), all designated as approved by the Planning Commission on November 19, 2015, and shall not be altered without express authorization by the Planning and Building Department. SCA The following conditions shall be completed and /or fulfilled to the satisfaction of the Engineering Services Division: 1. The applicant shall be responsible for the payment of any and all applicable impact fees resulting from the change in use to a restaurant space including but not limited to Traffic Mitigation Fees and Sewer Capacity Fees. The fees shall be assessed and paid as part of the building permit for tenant improvements. SCB The following Planning Department conditions shall be satisfied to the Director of the Planning and Building Department: 1. The restaurant at all times shall comply with Chapter 9.32 (Noise Abatement and Control) and Chapter 30.40 (Performance Standards) of the Encinitas Municipal Code, as it relates to noise thresholds as measured at the property line. 2. The requirements and restrictions of an ABC license shall be in addition to this approval for a Minor Use Permit. 3. All requirements of the Alcohol Beverage Control (ABC) shall be complied with, including that all areas licensed for the sale of alcohol shall meet the criteria of the ABC. 4. The serving of alcohol shall be limited to the interior dining area of restaurant in accordance with the floor plan dated October 29, 2015. No consumption or service of alcohol will take place in the public right -of -way in accordance with Section 9.28.010 (Prohibited Possession of Opened Container, Public Property). 5. All alcoholic beverage service and consumption shall take place between 11:00 a.m. and 10:00 p.m. Monday through Sunday and between 11:00 a.m, and 10:00 p.m. No alcohol shall be served past these established times and in any areas. 6. At all times when alcoholic beverages are sold, served, or consumed, food services with a full menu shall be available to patrons upon request. 7. Any modifications to the alcohol service areas and hours of operations as approved herein and depicted on the project plans and Operation Management Plan (Form O) shall be reviewed by the Planning and Building Department for compliance with conditions of approval of this use permit and determine, whether a modification to the use permit is necessary. 8. No live music shall be allowed and no other music shall be audible outside of the restaurant space. Incidental background music shall be allowed within the interior restaurant during the hours of operations as identified in the Operations Management Plan. 9. There shall be no dancing on the premises at any time. 10. Any future use of amusement devices (including video game machines or similar devices which are controlled, allowed or made possible by depositing or placing a coin, plate, disk, slug or key into a slot, crevice or other opening or by paying a fee for use as a game, contest or amusement of any description, the use or possession of which is not prohibited by any law of the State of California) shall be subject to Section 6.08.020 of the Encinitas Municipal Code and may require an Amusement Establishment and Device License through the City Clerk's office of City of Encinitas. 11. The operation as approved herein shall not be converted to any other use including but not limited to a bar, dance floor, band stage /station, Disc Jockey station, etc., unless a modification to the use permit is approved to the satisfaction of the Planning and Building Department. This use permit is for alcohol sales as an accessory use to the principal restaurant use. 12. To the satisfaction of the Planning and Building Department, all project lighting shall not impact any adjacent properties. All exterior lighting shall be directed downward, be contained on site, and be shielded such that the light source is not visible to prevent glare to adjacent properties or streets. 13. No signage is proposed with this application. All future signage will be reviewed for consistency with Chapter 30.60 (Signs) and may require a permit amendment. The applicant shall contact the Planning and Building Department prior to undertaking any such modification. SCB The following conditions shall be completed and /or fulfilled to the satisfaction of the San Dieguito Wastewater District (SDWD): 1. The subject property is served by a 5/8 -inch water meter. The applicant shall install a backflow preventer after the water meter in accordance with the San Dieguito Municipal Water District's rules and regulations. SCC The fagade improvements are proposed for just the subject suite on -site. Any future exterior modifications to the adjacent vacant suite at 542 North Coast Highway 101 shall be complementary to this suite and consistent with all North Corridor 101 Specific Plan Design Guidelines. G1 STANDARD CONDITIONS: CONTACT THE PLANNING AND BUILDING DEPARTMENT REGARDING COMPLIANCE WITH THE FOLLOWING CONDITIONS: G2 This approval may be appealed to the City Council within 15 calendar days from the date of this approval in accordance with Chapter 1.12 of the Municipal Code. G4 Prior to grading /building permit issuance, the owner shall cause a covenant regarding real property to be recorded. Said covenant shall set forth the terms and conditions of this grant of approval and shall be of a form and content satisfactory to the Planning and Building Director. The Owner(s) agree, in acceptance of the conditions of this approval, to waive any claims of liability against the City and agrees to indemnify, hold harmless and defend the City and City's employees relative to the action to approve the project. G5 Approval of this request shall not waive compliance with any sections of the Municipal Code and all other applicable City regulations in effect at the time of Building Permit issuance unless specifically waived herein. G11 All roof - mounted equipment and appurtenances, including air conditioners and their associated vents, conduits and other mechanical and electrical equipment, shall be architecturally integrated, and shall be shielded from view and sound buffered to the satisfaction of the Planning and Building Department. Note: All rooftop equipment shall be assumed visible unless demonstrated otherwise to the satisfaction of the Planning and Building Department, and adequate structural support shall be incorporated into building design. Rooftop vent pipes shall be combined below the roof, and shall utilize decorative caps where visible from any point. Ground - mounted mechanical and electrical equipment shall also be screened through use of a wall, fence, landscaping, berm, or combination thereof to the satisfaction of the Planning and Building Department. All exterior accessory structures shall be designed to be compatible with the primary building's exterior to the satisfaction of the Planning and Building Department. G12 Prior to any use of the project site pursuant to this permit, all conditions of approval contained herein shall be completed or secured to the satisfaction of the Planning and Building Department. G13 The applicant shall pay development fees at the established rate. Such fees may include, but not be limited to: Permit and Plan Checking Fees, Water and Sewer Service Fees, School Fees, Traffic Mitigation Fees, Flood Control Mitigation Fees, Park Mitigation Fees, and Fire Mitigation /Cost Recovery Fees. Arrangements to pay these fees shall be made prior to building permit issuance to the satisfaction of the Planning and Building and Engineering Services Departments. The applicant is advised to contact the Planning and Building Department regarding Park Mitigation Fees, the Engineering Services Department regarding Flood Control and Traffic Fees, applicable School District(s) regarding School Fees, the Fire Department regarding Fire Mitigation /Cost Recovery Fees, and the applicable Utility Departments or Districts regarding Water and /or Sewer Fees. G20 Decorative use of neon or LED tubing or banding, such as tubing around windows or doors or banding around the building exterior, shall not be allowed unless approved through subsequent design review permit modification(s). Temporary window signs are limited to 25% of window area in accordance with Section 30.60.060 (N) of the Municipal Code. G21 All utility connections shall be designed to coordinate with the architectural elements of the site so as not to be exposed except where necessary. Locations of pad mounted transformers, meter boxes, and other utility related items shall be included in the site plan submitted with the building permit application with an appropriate screening treatment. Transformers, terminal boxes, meter cabinets, pedestals, ducts and other facilities may be placed above ground provided they are screened with landscaping. USE PERMITS U1 At all times during the effective period of this permit, the responsible party shall obtain and maintain in valid force and effect, each and every license and permit required by a governmental agency for the operation of the authorized activity. U2 In the event that any of the conditions of this permit are not satisfied, the Planning and Building Department shall cause a noticed hearing to be set before the authorized agency to determine whether the City of Encinitas should revoke this permit. U3 Upon a showing of compelling public necessity demonstrated at a noticed hearing, the City of Encinitas, acting through the authorized agency, may add, amend, or delete conditions and regulations contained in this permit. U4 Nothing in this permit shall relieve the applicant from complying with conditions and regulations generally imposed upon activities similar in nature to the activity authorized by this permit. U5 Nothing in this permit shall authorize the applicant to intensify the authorized activity beyond that which is specifically described in this permit. U6 The hours of operation are not limited, but shall be reviewed and may be limited by the Planning Commission should substantiated complaints arise pertaining to the hours of operation. U7 Any future modifications to the approved project will be reviewed relative to the findings for substantial conformance with a use permit contained in Section 30.74.105 of the Municipal Code. Modifications beyond the scope described therein will require submittal of an amendment to the use permit and approval by the authorized agency. USE PERMITS FOR ON -SALE ALCOHOL UA1 The use shall operate within the scale, scope and limitations as described in the approved Operational Management Plan. UA2 Upon receipt of any substantial complaint(s) regarding the operation of the business which is the subject of this permit, the City may, upon proper notification of the owner and /or applicant and acting through the authorized agency, conduct a hearing to determine if the conditions of approval need to be modified or whether the permit should be revoked. UA3 No sales of alcoholic beverages for consumption off - premises are authorized through this permit. UA5 The quarterly gross sales of alcoholic beverages shall not exceed 50% of the quarterly gross sales of all food products during the same period. UA6 Business shall be conducted in a manner that will not violate any provisions of the California Alcoholic Beverage Control Act, providing against the sale of alcohol to minors; maintaining the public health, morals, convenience, and safety; and taking reasonable steps to correct any objectionable conditions on the premises and immediately adjacent to the premises. UA7 This permit is strictly limited to allow only the occupant load for the premises as approved by the City of Encinitas Fire Department. Any improvements that will result in an increase in current occupancy load shall require a modification to the use permit. Occupant loads approved by the City of Encinitas Fire Department shall be posted at all times. UA8 Upon a change to the business model as represented in the applicant's Operational Management Plan, the use permit shall be reviewed by the Planning and Building Director for compliance with conditions of approval or to determine whether a modification to the use permit is necessary. UA9 The applicant is responsible at all times for verifying the legal age of patrons, monitoring the behavior of patrons, and taking appropriate actions to deter conduct that may threaten the health, safety or welfare of patrons or property. UA10 The applicant shall ensure that no patron exhibiting observable signs or behaviors consistent with intoxication is furnished with alcohol and that bar policies shall reserve the right of the establishment to deny alcohol service to any patron. UA11 No individual under 21 years of age, or without proper identification, shall be served or sold alcohol. UA12 The site shall be maintained in a neat and orderly manner at all times. UA13 No sales of alcoholic beverages for consumption off - premises is authorized through this permit. UA14 This use permit includes approval of wine and beer sales for on -site consumption only. The sale of other liquors shall require an amendment to this use permit. UA15 The applicant shall be responsible for managing outdoor crowds and queuing as a result of this use (ensuring that an orderly line of patrons awaiting entry does not block public access on, or use of, the sidewalk or street). DESIGN REVIEW DR1 Any future modifications to the approved project will be reviewed relative to the findings for substantial conformance with a design review permit contained in Section 23.08.140 of the Municipal Code. Modifications beyond the scope described therein may require submittal of an amendment to the design review permit and approval by the authorized agency. F1 FIRE CONDITIONS: CONTACT THE ENCINITAS FIRE DEPARTMENT REGARDING COMPLIANCE WITH THE FOLLOWING CONDITIONS: F10 OBSTRUCTION OF ROADWAYS DURING CONSTRUCTION: All roadways shall be a minimum of 24 feet in width during construction and maintained free and clear, including the parking of vehicles, in accordance with the California Fire Code and the Encinitas Fire Department. F13 ADDRESS NUMBERS: STREET NUMBERS: Approved numbers and/or addresses shall be placed on all new and existing buildings and at appropriate additional locations as to be plainly visible and legible from the street or roadway fronting the property from either direction of approach. Said numbers shall contrast with their background, and shall meet the following minimum standards as to size: 4 inches high with a "/- inch stroke width for residential buildings, 8 inches high with a 'h -inch stroke for commercial and multi - family residential buildings, 12 inches high with a 1 -inch stroke for industrial buildings. Additional numbers shall be required where deemed necessary by the Fire Marshal, such as rear access doors, building corners, and entrances to commercial centers. F18 CLASS "A" ROOF: All structures shall be provided with a Class "A" Roof covering to the satisfaction of the Encinitas Fire Department. I c1111MICILT e�iTi ► ► CONTACT THE ENCINITAS BUILDING DIVISION REGARDING COMPLIANCE WITH THE FOLLOWING CONDITION: B2 The applicant shall submit a complete set of construction plans to the Building Division for plancheck processing. The submittal shall include a Soils /Geotechnical Report, structural calculations, and State Energy compliance documentation (Title 24). Construction plans shall include a site plan, a foundation plan, floor and roof framing plans, floor plan(s), section details, exterior elevations, and materials specifications. Submitted plans must show compliance with the latest adopted editions of the California Building Code (The Uniform Building Code with California Amendments, the California Mechanical, Electrical and Plumbing Codes). Commercial and Multi- residential construction must also contain details and notes to show compliance with State disabled accessibility mandates. These comments are preliminary only. A comprehensive plancheck will be completed prior to permit issuance and additional technical code requirements may be identified and changes to the originally submitted plans may be required. E1 ENGINEERING CONDITIONS: CONTACT THE ENGINEERING SERVICES DEPARTMENT REGARDING COMPLIANCE WITH THE FOLLOWING CONDITION(S): E2 All City Codes, regulations, and policies in effect at the time of building /grading permit issuance shall apply. E3 All drawings submitted for Engineering permits are required to reference the NAVD 88 datum; the NGVD 29 datum will not be accepted.