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.