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2018-18RESOLUTION NO. PC 2018 -18 A RESOLUTION OF THE CITY OF ENCINITAS PLANNING COMMISSION APPROVING A MINOR USE PERMIT MODIFICATION AND COASTAL DEVELOPMENT PERMIT TO CONVERT AN EXISTING EXTERIOR WAITING AREA INTO AN OUTDOOR DINING AREA WITH ALCOHOL SERVICE AND TO MODIFY PREVIOUS CONDITIONS FOR AN EXISTING RESTAURANT WITH ALCOHOL SERVICE (TYPE 47 ABC LICENSE) LOCATED AT 542 NORTH COAST HIGHWAY 101. (CASE NO. 17 -295 MINMOD; APN: 256- 081 -36) WHEREAS, Ray Herrera submitted an application for a Minor Use Permit Modification and Coastal Development Permit to authorize the conversion of an outdoor waiting area into an outdoor dining area with alcohol service for an existing restaurant, and the modification of relevant previous conditions of a use permit for the sale of beer, wine and distilled spirits for on- site consumption as secondary and accessory to an existing restaurant as principal use, located at 542 North Coast Highway 101, legally described in Exhibit A; WHEREAS, the Planning Commission conducted a duly noticed public hearing on June 7,2018; NOW, THEREFORE, BE IT RESOLVED that the Encinitas Planning Commission hereby APPROVES Case No. 17 -295 MINMOD /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 16301(a) 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 Minor Use Permit 1. The location, size, design or operating characteristics of the proposed project will be incompatible with or will adversely affect or will be materially detrimental to adjacent uses, residences, buildings, structures or natural resources, with consideration given to, but not limited to: a. The inadequacy of services and utilities proposed project. public facilities, to serve the of Find The existing restaurant is located on a developed commercial site along the North Coast Highway 101 corridor in Leucadia. The proposed modifications with not adversely affect adjacent uses or structures. All public facilities, services and utilities are in place to serve the existing restaurant. Findings for Minor 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 restaurants and a variety which is proposed. of other commercial uses within the North Coast Highway 101 corridor business district. The closest residence development is located to the west of commercial suite, approximately 57 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 other than an access door to the parking lot. 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 proposed outdoor dining and alcohol service area and operational characteristics. c. The harmful effect, if any, upon The modified exterior layout and operational environmental quality and natural characteristics with the existing Type -47 ABC resources of the city. license for an existing restaurant as modified herein 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 Section 3.1.2A2 of the North 101 Corridor adversely affect the policies of the Specific Plan permits a restaurant with alcohol Encinitas General Plan or the provisions of sales, with the issuance of a Minor Use this Code; or Permit. The existing restaurant and proposed modification to the restaurant with alcohol sales with the proposed operational characteristics has been analyzed in relation to surrounding commercial and residential conditions, and it has been determined that it 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 other As conditioned, the project will comply with all regulations, conditions or policies imposed requirements of the North 101 Corridor by this Code. 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. 2. The proposed development conforms with Public Resources Code Section 21000 and following (CEQA) in that there are no feasible mitigation measures or feasible alternatives available which would substantially lessen any significant adverse impact that the activity may have on the environment. 3. For projects involving development between the sea or other body of water 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. 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, North 101 Corridor Specific Plan and the Encinitas Municipal Code with the approval of the Minor Use Permit Modification 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 Section 15301(a); and 3) Finding No. 3 is not applicable since the project site is located on North Coast Highway 101 between Basil Street and Athena Street, 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 -295 MINMODICDP is hereby approved subject to the conditions in Exhibit B. PASSED AND ADOPTED this Ph day of June, 2018, by the following vote, to wit: AYES: Ehlers, Apuzzo, Doyle and Hubbard NOES: O'Grady ABSTAIN: None ABSENT: None 1 M chael Glenn O'Grady, Cha' ATTEST: NOTE: This action is subject to Chapter 1.04 of the Municipal Code, which specifies time limits for legal challenges. EXHIBIT "N' Resolution No. PC 2018 -18 Case No. 17 -295 MINMODICDP LEGAL DESCRIPTION LOTS 3 AND 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 SAID COUNTY, AUGUST 17, 1926 EXCEPTING FROM SAID LOT 8, THE SOUTHWESTERLY 55.00 FEET THEREOF ALSO EXCEPTING FROM SAID LOT 8, THAT PORTION DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST EASTERLY CORNER OF SAID LOT 8; THENCE ALONG THE SOUTHERLY LINE OF SAID LOT 8, NORTH 89 °00'30" WEST 40.23 FEET; THENCE NORTH 28 033'30" WEST 63.87 FEET TO A POINT ON THE SOUTHWESTERLY PROLONGATION OF THE NORTHWESTERLY LINE OF LOT 2 OF SAID BLOCK "C "; THENCE ALONG SAID PROLONGATION, NORTH 61 026'30" EAST 35.00 FEET TO THE NORTHEASTERLY LINE OF SAID LOT 8, THENCE ALONG SAID NORTHEASTERLY LINE SOUTH 28 033'30" EAST 83.71 FEET TO THE POINT OF BEGINNING. ALSO EXCEPTING FROM SAID LOT 8, THAT PORTION LYING EASTERLY OF THE EASTERLY LINE OF THE SOUTHWESTERLY 116.00 FEET AND NORTHERLY OF THE SOUTHWESTERLY PROLONGATION OF THE SOUTHEASTERLY LINE OF LOT 4 IN SAID BLOCK "C" EXHIBIT "B" Resolutions No. PC 2018 -18 Case No. 17 -295 MINMODICDP Applicant: Ray Herrera Location: 542 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 June 7, 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 May 21, 2018, consisting of four sheets including a site plan, floor plan, existing elevations and a parking plan, all designated as approved by the Planning Commission on June 7, 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 -59. SC13 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. For the interior dining area of the restaurant: 8 a.m. to 10 p.m. on Sunday through Thursday, 8 a.m. to 12 a.m. on Friday, and Saturday from 9 a.m. to 12 a.m. b. For the outdoor dining area 8 a.m. to 10 p.m. Sunday through Friday, and Saturday from 9 a.m. to 10 p.m. 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 May 21, 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. Alcohol sales and service shall always remain accessory to the principal restaurant use. 4. Any modifications to the alcohol service areas or 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, who shall determine whether a modification to the use permit is necessary. 5. The use of charter party carrier or excursion services (i.e. "party buses ") shall be prohibited. 6. The applicant shall pay all applicable mitigation and impact fees associated with the change to restaurant use, 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 this Minor Use Permit Modification or issuance of a building permit, whichever comes first. 7. 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. 8. The requirements and restrictions of the State Department of Alcoholic Beverage Control (ABC) license issued for the restaurant and outdoor patio area shall be in addition to this approval. 9. All requirements of the State Department of Alcoholic Beverage Control (ABC) shall be complied with, including that all areas licensed for the sale of alcohol shall meet the criteria of the ABC. 10. 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. 11. Live entertainment is permitted within the interior dining area only with a maximum of two 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 May 21, 2018. Incidental background music may be allowed within the interior restaurant during the hours of operations. Dancing shall be prohibited on the premises. 12. No live music or other music shall be audible outside of the restaurant space that does not comply with the Municipal Code noise regulations. 13. Any operable windows and doors shall be closed at 10 p.m. 14. There shall be no dancing on the premises at any time. 15. 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. 16. 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. 17. 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. 18. 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. 19. The project lies within the Leucadia Wastewater District (LWD). Project plans shall be submitted to the LWD for requirements and processed for their approval. 20. The proposed planters in the public right -of -way shall not be fixed into position and shall be considered temporary. The applicant shall obtain a Temporary Encroachment permit from the Engineering Division. SCC The following conditions shall be completed/fulfilled to the satisfaction of the Fire Prevention Division of the Fire Department: 1. The applicant shall obtain a building permit to construct the exterior patio area. 2. Any future approved awning or patio heaters shall require approval from the Fire Department prior to the use or installation. 3. A final inspection shall be required prior the use of the outdoor dining area. 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 permitlissuance of building 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. G7 Permits from other agencies will be required as follows: State Alcoholic Beverage Control 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. The applicant shall submit evidence to the Development Services Department on an annual basis to demonstrate compliance with the quarterly gross sales limitation for alcoholic beverages. 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. UA91 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. UA13 No individual under 21 years of age, or without proper identification, shall be served or sold alcohol. UA15 No sales of alcoholic beverages for consumption off - premises is authorized through this permit. 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. 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. 131 BUILDING CONDITION: CONTACT THE DEVELOPMENT SERVICES DEPARTMENT 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 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 DEVELOPMENT 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.