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2018-16RESOLUTION NO. PC 2018 -16 A RESOLUTION OF THE CITY OF ENCINITAS PLANNING COMMISSION APPROVING A MINOR USE PERMIT MODIFICATION AND COASTAL DEVELOPMENT PERMIT TO MODIFY THE RESTAURANT TABLE, COUNTER AND SEATING LAYOUT, THE OPERATIONAL CHARACTERISTICS AND REMOVE PREVIOUS CONDITIONS FOR AN EXISTING RESTAURANT WITH ALCOHOL SERVICE (TYPE 41 ABC LICENSE) LOCATED AT 2101 SAN ELIJO AVENUE. (CASE NO. 17 -057 MINMOD; APN: 261 - 031 -25) WHEREAS, Francesco Bucci submitted an application for a Minor Use Permit Modification and a Coastal Development Permit, to authorize modifications to the layout of a restaurant, the operational characteristics and the modification and removal of some previous conditions of a use permit for the sale of beer and wine for on- and off -site consumption as secondary and accessory to an existing restaurant as principal use, located at 2101 San Elijo Avenue, legally described in Exhibit A; WHEREAS, the Planning Commission conducted a duly noticed public hearing on April 19, 2018; NOW, THEREFORE, BE IT RESOLVED that the Encinitas Planning Commission hereby APPROVES Case No. 17 -057 MINMODICDP 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. Section 15301 exempts minor interior or exterior alterations of private structures. The proposed 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 the findings for a Use Permit as per Encinitas Municipal Code Section 30.74.070 (Use Permit) and the aforementioned analysis, Planning Commission has made the following findings to approve the project, with conditions: Findin s for Major Use Permit Explanation of Finding 1. The location, size, design or operating The existing restaurant is located on a characteristics of the proposed project will developed commercial site along the San Elijo be incompatible with or will adversely affect commercial business corridor in Cardiff- by -the- or will be materially detrimental to adjacent Sea. The proposed modifications with not uses, residences, buildings, structures or adversely affect adjacent uses or structures. natural resources, with consideration given All public facilities, services and utilities are in to, but not limited to: place to serve the existing restaurant. a. The inadequacy of public facilities, services and utilities to serve the proposed project. Findings for Major Use Permit Explanation of Finding b. The unsuitability of the site for the type The existing restaurant is surrounded by a mix and intensity of use or development of retail, office, other restaurant and a variety which is proposed. of other commercial uses within the Cardiff business district. Residential uses are located approximately 470 feet from the establishment, which provides separation between the proposed use and residential use. No evidence has been identified to demonstrate that the site is unsuitable for the existing use with the proposed modifications to the operation and layout. The San Diego Sherriff's Department has not identified any concerns with the layout and operational characteristics. c. The harmful effect, if any, upon The modified layout and operational environmental quality and natural characteristics with the existing Type -41 ABC resources of the city. license for an existing restaurant 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 will Chapter 3 of the Cardiff -by -the -Sea Specific adversely affect the policies of the Plan permits a restaurant with alcohol sales, Encinitas General Plan or the provisions of with the issuance of a Minor Use Permit. The this Code; or restaurant with_ alcohol sales . with the proposed modified operational characteristics has been analyzed with surrounding conditions, and has been determined that it will not adversely affect any policies of the Encinitas General Plan or provisions of the Cardiff -by- the -Sea Specific Plan or Municipal Code, as conditioned. 3. The project fails to comply with any other As conditioned, the project as proposed will regulations, conditions or policies imposed comply with all requirements of the Cardiff -by- by this Code. the -Sea Specific Plan and the Municipal Code. The project will be subject to all limitations of the project description, conditions of approval and EMC Chapter 9.32 and Chapter 30.40 (Noise Performance Standards) of the Municipal Code. The project is subject to the Proactive Code Enforcement Program (PACE) and Deemed Approved Ordinance (DAO). Based on the findings for a Coastal Development Permit as per Encinitas Municipal Code Section 30.80.090 (Coastal Development Permit) and the aforementioned analysis, the Planning Commission has made the following findings to support the approval, with conditions: _Finding for Coastal Development Permit 1. The project is consistent with the certified Local Coastal Program of the City of Encinitas. Explanation of Finding 1) The proposed project, as conditioned, is consistent with the certified Local Coastal Program of the City of Encinitas, consisting of the General Plan, Cardiff-by- the -Sea Specific Plan and the Encinitas Municipal Code with the approval of the Minor Use Permit and Coastal Development Permit. 2) No evidence has been identified to indicate that significant environmental impacts would result from the proposed project. The project has been determined to be exempt from environmental review per the California Environmental Quality Act (CEQA) Guidelines Sections 15301; and 3) Finding No. 3 is not applicable since the project site is located on San Elijo Avenue between Liverpool Drive and Aberdeen Drive, which is not between the first public road and the sea. _ 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. 17 -457 MINMODICDP is hereby approved subject to the conditions in Exhibit B. PASSED AND ADOPTED this 1e day of April, 2018, by the following vote, to wit: AYES: Apuzzo, Doyle, Ehlers, Hubbard and O'Grady NOES: None ABSTAIN: None ABSENT: None Michael 'Glenn O'Grady, Ch r ATTEST: ry NOTE': This action is subject to Chapter 1.04 of the Municipal Code, which specifies time limits for legal challenges. EXHIBIT "A" Resolution No. PC 201 5 -16 Case No. 17 -057 MINMOD /CDP LEGAL DESCRIPTION Lots one to six inclusive in Block sixty -three of Cardiff Villa Tract in the County of San Diego, State of California, according to Map Thereof No. 1469, filed in the Office of the County Recorder of said San Diego County August 10, 1912. EXHIBIT "B" Resolution No. PC 2018 -16 Case No. 17 -057 MINMOD /CDP Applicant: Francesco Bucci Location: 2101 San Elijo Avenue (APN: 261- 031 -25) SC1 SPECIFIC CONDITIONS: SC2 At any time after two years from the date of this approval, on April 19, 2020, at 5 p.m., 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 March 29, 2017, consisting of two sheets including a site plan and floor plan, all designated as approved by the Planning Commission on April 19, 2018, and shall not be altered without express authorization by the Development Services Department. SCA The conditions of this resolution shall supersede conditions of approval of Planning Commission Resolution No. PC 2016 -67. SCB The following conditions shall be completed /fulfilled to the satisfaction of the Development Services Department: 1. Hours of operation shall be limited to the following: a. 7 a.m. to midnight, Mondays through Sundays, for the interior of the restaurant. b. 7 a.m. to 10 p.m., Sunday through Thursday and 7 a.m. to 11 p.m. on Friday and Saturday, for the outdoor patio areas. c. 10 a.m. to 10 p.m., Monday through Sundays, for the offsite sale of alcohol. 2. The service of alcohol shall be limited to the interior and exterior dining areas of the restaurant depicted on the floor plans received by the City on March 30, 2018. No consumption or service of alcohol shall take place in the public right -of -way in accordance with Section 9.28.010 (Prohibited Possession of Opened Container, Public Property). 3. Sales of alcoholic beverages for consumption off- premises shall be permitted from 10 am to 10 pm daily. 4. Alcohol sales and service shall always remain accessory to the principal restaurant use. 5. Any modifications to the alcohol service areas and hours of operations as approved herein and depicted on the project plans and described in the project description shall be reviewed by the Development Services Department for compliance with conditions of approval of this use permit and determine, whether a modification to the use permit is necessary. 6. The use of charter party carrier or excursion services (i.e. "party buses ") shall be prohibited. 7. The applicant shall provide evidence on an annual basis to show compliance with the quarterly gross sales limitation for alcoholic beverages as per Condition UA7 of this approval. 8. The applicant shall pay all applicable mitigation and impact fees associated with the change in use to restaurant and the increased number of dining seats including but not limited to Traffic Mitigation fees and Wastewater Capacity fees. These impact fees shall be paid in full prior to initiating use in reliance on the Minor Use Permit or issuance of a building permit whichever comes first. 9. 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. 10. The requirements and restrictions of the ABC license issued for the restaurant and outdoor patio area shall be in addition to this approval. 11. 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. 12. At all times when alcoholic beverages are sold, served, or consumed, food services with a full menu shall be available to patrons upon request. Alcohol sales and service shall always remain accessory to the principal restaurant use. 13. Live entertainment is permitted within the interior dining area only with a maximum of three musicians with approval of an Entertainment License Permit. No live music /entertainment shall be permitted within the outdoor patio area. All live entertainment shall be non - amplified music at the designated location depicted on the floor plan received by the City November 28, 2016. Incidental background music may be allowed within the interior restaurant during the hours of operations. Dancing shall be prohibited on the premises. 14. No live music or other music shall be audible outside of the restaurant space that does not comply with the Municipal Code noise regulations. 15. Any operable windows and doors shall be closed at 10 p.m. 16. There shall be no dancing on the premises at any time. 17. 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 as amended from time -to -time and may require separate approval. 18. 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 Development Services Department. This use permit is for alcohol sales as an accessory use to the principal restaurant use. Failure to operate alcohol sales as an accessory use to the principal use may result in reconsideration of this use permit. 19. 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. 20. The outdoor dining areas shall be limited to within five feet from the building wall as shown on the floor plan dated March 30, 2018. The three outdoor heaters shall not be located within the exit aisles and shall maintain a minimum of 36 inches clear unobstructed access to the exit to the satisfaction of the Development Services Department. The existing bench located within the dining area shall not be utilized for purposes of the dining area and alcohol consumption. Any modifications to the dining area including but not limited to the table and chair layout and additional amenities (umbrellas, heaters, etc.) shall require additional review and approval by the Development Services Department. 21. The northerly open unrestricted access to the site shall be posted with signage delineating that alcohol service and consumption is prohibited beyond the railing within the public right -of -way. 22. No licensee, manager or server shall sell, serve or deliver to a patron any alcoholic beverage unless he or she has completed Responsible Beverage Service and Sales (RBSS) training conducted by the California Department of Alcoholic Beverage Control or by a certified RBSS training provider in accordance with Chapter 9.43 of the Municipal Code. 23. The safe of liqueur is prohibited other than beer and wine for the on -site consumption or offsite sales without an amendment to this minor use permit modification. 24. The tenant space square footage shall be limited to ten percent storage of alcohol for the on -site consumption and offsite sales associated with the use. G1 STANDARD CONDITIONS: CONTACT THE DEVELOPMENT SERVICES DEPARTMENT REGARDING COMPLIANCE WITH THE FOLLOWING CONDITION(S): 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 initiating use in reliance on this permit, 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 Development Services Director. G5 The Owner(s) shall waive any claims of liability against the City and indemnify, hold harmless and defend the City and City's employees regarding any component of the City's approval, by executing an indemnity agreement in substantially the form as provided by the Development Services Department prior to initiating use in reliance of this permit and the Development Services Director, or designee, is hereby authorized to execute the same. G6 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. G13 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 Development Services Department. G14 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 initiating use in reliance on this permit to the satisfaction of the Planning & Building and Engineering Services Departments. The applicant is advised to contact the Planning & 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 Development Services 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. 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 approved and conditioned herein. 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. UA7 The quarterly gross sales of alcoholic beverages shall not exceed 50 percent of the quarterly gross sales of all food products during the same period. UA8 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. UA10 Upon a change to the business model as approved and conditioned herein, the use permit shall be reviewed by the Development Services Department for compliance with conditions of approval or to determine whether a modification to the use permit is necessary. UA11 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. UA12 The applicant shall ensure that no patron exhibiting observable signs or behaviors consistent with intoxication is furnished with alcohol and that restaurant policies shall reserve the right of the establishment to deny alcohol service to any patron. UA17 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). UA18 No pool tables or coin - operated amusement devices shall be permitted, maintained or operated on the premises. UA21 The applicant shall make reasonable efforts to minimize the potential for adverse noise and crowd impacts on adjacent establishments, including, but not limited to, ensuring that windows and doors are closed during entertainment or by 10 p.m. UA22 To address complaints and minimize the need for sheriff response to minor issues, the applicant shall have a manager on premises at all times when entertainment is performed and shall be available to be contacted by a City representative and/or adjacent property owner or tenant. UA24 No licensee, manager or server shall sell, serve or deliver to a patron any alcoholic beverage unless he or she has completed Responsible Beverage Service and Sales training conducted by the California Department of Alcoholic Beverage Control or by a certified RBSS training provider in accordance with Chapter 9.43 of the Municipal Code. UA25 The subject alcoholic beverage serving establishment shall automatically become a Deemed Approved Activity as per Encinitas Municipal Code (EMC) Section 9.27.050 and shall comply with Deemed Approved Performance Standards prescribed in EMC Section 9.27.070. Failure to comply with the standards will result in enforcement actions and possible revocation of the Deemed Approved Status. In the event the Deemed Approved Status is revoked, the Development Services Department shall cause a noticed hearing to be set before the authorized agency to determine whether the City of Encinitas should modify or revoke this use permit. 81 BUILDING CONDITION: 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. 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. F18 CLASS "A' ROOF: All structures shall be provided with a Class "A" Roof covering to the satisfaction of the Encinitas Fire Department. 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 build inglgrading 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.