HomeMy WebLinkAbout21 - Appeal of Director's Determination No. DD2021-001 Interpreting Accessory Residential as an Allowed Use within Resort HotelsQ �EwPpRT
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<,FORN'P City Council Staff Report
August 24, 2021
Agenda Item No. 21
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Seimone Jurjis, Community Development Director - 949-644-3232,
sjurjis@newportbeachca.gov
PREPARED BY: Jaime Murillo, Principal Planner, jmurillo@newportbeachca.gov
PHONE: 949-644-3209
TITLE: Resolution No. 2021-78: Appeal of Director's Determination No.
DD2021-001 Interpreting Accessory Residential as an Allowed Use
within Resort Hotels (PA2021-096)
ABSTRACT:
For the City Council's consideration, is an appeal of the Community Development
Director's Determination No. DD2021-001, issued on April 30, 2021, interpreting that
residential uses are allowable as an accessory use within resort hotels under certain
parameters. On July 8, 2021, the Planning Commission denied a similar appeal filed on
May 14, 2021, by Stop Polluting Our Newport (SPON) and upheld the determination. On
July 22, 2021, SPON filed an appeal of the Planning Commission's decision to the City
Council.
In issuing the Director's Determination, the Community Development Director was acting
in accordance with the direction given by the City Council in Council Policy K-4 (Reducing
the Barriers to the Creation of Housing). That Council Policy is final and effective. Thus,
on appeal, the issue before the City Council is limited to whether the Director's
Determination is consistent with Council Policy K-4. The question raised in the appeals
filed by SPON regarding consistency with City Charter Section 423 and Council Policy A-
18 was resolved in Council Policy K-4 and is therefore not before the Council.
Nonetheless, for the sake of completeness, this staff report will also address City Charter
Section 423 and Council Policy A-18.
Based upon the facts and evidence set forth in this staff report and the attached
resolution, staff recommends that the City Council deny SPON's appeal, determine that
the Director's interpretation is consistent with Council Policy K-4 and uphold Director's
Determination No. DD2021-001, and the associated findings.
RECOMMENDATION:
a) Conduct a de novo public hearing;
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b) Find this Director's Determination is exempt from the California Environmental Quality
Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or
reasonably foreseeable indirect physical change in the environment) and 15060(c)(3)
(the activity is not a project as defined in Section 15378) of the CEQA Guidelines,
California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly. This
Director's Determination is also exempt pursuant to CEQA Guidelines Section
15061(b)(3), the general rule common sense exemption that CEQA applies only when
there is the potential for causing a significant effect on the environment; and
c) Adopt Resolution No. 2021-78, A Resolution of the City Council of Newport Beach,
California, Denying an Appeal and Upholding the Community Development Director's
Determination No. DD2021-001, and Associated Findings, that Accessory Residential
is an Allowed Use within Resort Hotels (PA2021-096).
BACKGROUND
City Council Policy K-4 (Reducing the Barriers to the Creation of Housing)
At the March 9, 2021, City Council meeting, the City Council adopted Resolution No. 2021-
18 (Attachment B) adding Council Policy K-4 - Reducing the Barriers to the Creation of
Housing (Council Policy K-4). Council Policy K-4 recognizes that the City of Newport Beach
(City) has several major constraints that severely limit or totally restrict its ability to
accommodate growth to the extent identified in the 6t" Cycle Regional Housing Needs
Allocation (RHNA). As a result, new and flexible land use and zoning regulations and
strategies should be developed in order to reasonably and practically accommodate this
ambitious State housing mandate while protecting the character and maintaining a quality
of life that makes Newport Beach a special place to live, work and visit.
Council Policy K-4 directs City staff to develop, modify as necessary, and aggressively
implement various strategies designed to accelerate housing production consistent with
the policy, including encouraging and incentivizing the development of mixed-use hotels.
The goals of Council Policy K-4 include interpreting ambiguities in the City's General Plan,
Coastal Land Use Plan, Title 20 (Planning and Zoning) and Title 21 (Local Coastal
Program Implementation Plan) of the Newport Beach Municipal Code (NBMC) to allow
hotels and motels, located outside of the Coastal Commission Appeal Jurisdiction, to
convert up to 30 percent of their approved hotel rooms into residential units on a one-for-
one basis. Such interpretation would allow for residential units to be deemed an
accessory use to the principal use of a hotel and find that such residential uses are
consistent with the hotel and motel's underlying General Plan, Zoning Code, and Local
Coastal Plan Program land use and zoning designations.
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Council Policy K-4 was not appealed or challenged by the appellants or any other party,
and it is unambiguous in its direction for City staff to issue interpretations for the purpose
of allowing residential units as an accessory use for hotels and motels outside of the
California Coastal Commission appeal jurisdiction. As a result, the only issue before the
City Council is whether the Community Development Director, acting pursuant to the
authority provided in Council Policy K-4, issued a Director's Determination that is
consistent with said Council Policy.
Need for Interpretation
Title 20 (Planning and Zoning) and Title 21 (Local Coastal Program Implementation Plan)
of the NBMC define "hotel" as an establishment that provides guest rooms or suites for a
fee to transient guests for sleeping purposes. Access to units is primarily from interior
lobbies, courts, or halls. Related accessory uses [emphasis added] may include
conference rooms and meeting rooms, restaurants, bars, and recreational facilities. Guest
rooms may or may not contain kitchen facilities for food preparation. Hotels with kitchen
facilities are commonly known as extended stay hotels. A hotel operates subject to taxation
under California Revenue and Taxation Code Section 7280.
Title 20 and Title 21 include a definition of hotel that is out of date and does not reflect current
industry practice. Specifically, the definition of "hotel" has not been updated to designate
residential uses as an accessory use, which has become common practice for destination
resort hotels (mixed-use hotels). While the definition of a hotel does not prohibit residential
uses, a Director's Determination is necessary to fill the gap between contemporary practice
and the exact wording of Title 20 and Title 21.
Director's Determination No. DD2021-001 (Interpreting Accessory Residential as an
Allowed Use within Resort Hotels)
On April 30, 2021, the Community Development Director issued Director's Determination
No. DD2021-001 (Attachment C) consistent with Council Policy K-4. In summary, the
determination would allow residential as an accessory use to resort hotels subject to the
following:
Applicable only to resort hotels, a self-contained destination that provides for most
travel accommodation needs in one location, including but not limited to restaurants,
bars, shopping, and recreational facilities.
Must be located outside the appeal area identified in California Public Resources
Code Section 30603(a) as generally depicted on the Post-LCP Certification Permit
and Appeal Jurisdiction Map.
• Approved hotel rooms may be converted to residential units, but only on a one-for-
one basis.
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• The residential use shall at all times be accessory to the hotel use, and the residential
units shall comprise no more than 30 percent of the approved hotel rooms.
• The residential units may be located within a repurposed hotel or in a new residential
structure.
• A property owner that desires to have an accessory residential use at their hotel shall
process a conditional use permit and coastal development permit (if applicable). In
reviewing said permits, the review authority shall ensure adequate parking is
provided to accommodate the residential units through surplus parking, shared
parking, or the adoption of a parking management plan.
• Potential impacts to public access, affordable housing, and the loss of transient
occupancy tax must be mitigated by entering into a Development Agreement with the
City or by some other means deemed appropriate.
May 6, 2021 Planninq Commission Review
At the May 6, 2021, Planning Commission meeting, staff presented an overview of
Director's Determination No. DD2021-001 for receipt and file. The staff report for the item
included a detailed overview of the determination, including background, authority for the
determination, and applicability. The staff report is included as Attachment D and the
meeting minutes are included as Attachment E for reference.
May 14, 2021 Appeal and July 8, 2021, Planning Commission Review
On May 14, 2021, SPON filed an appeal of the Director's Determination alleging that the
determination improperly converts General Plan -approved hotel allocations into General
Plan -approved dwelling unit allocations without Greenlight (Charter Section 423) tracking,
in alleged contravention of Council Policy A-18 (Protection from Traffic and Density). The
appeal also states that the determination adds the potential for some 250 new dwelling
units to the General Plan Statistical Area L1, which would require voter approval if
processed as a General Plan Amendment. Lastly, the appeal indicates that staff should
not be able to do what the City Council could not do without voter approval.
On July 8, 2021, the Planning Commission considered the appeal at a noticed public
hearing. They unanimously adopted Resolution No. PC2021-016 (Attachment F) denying
the appeal and upholding Director's Determination No. DD2021-001. The detailed
Planning Commission staff report reviewing the appeal is included for reference as
Attachment G and the meeting minutes are included as Attachment H.
DISCUSSION:
Appeal to the City Council
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On July 22, 2021, SPON filed a subsequent appeal (Attachment 1) of the Planning
Commission's decision upholding the Director's Determination similarly alleging that the
determination improperly converts General Plan -approved hotel allocations into General
Plan -approved dwelling unit allocations without Greenlight (Charter Section 423) tracking,
in alleged contravention of Council Policy A-18 (Protection from Traffic and Density). No
supporting documentation was submitted in conjunction with this appeal application.
Written comments were submitted by the law offices of Chatten-Brown, Carstens &
Minteer LLP (Chatten-Brown) on July 7, 2021, on behalf of SPON, the evening prior to
the July 8, 2021, Planning Commission hearing (Attachment J). Although the question
before the Council is limited to whether the Community Development Director issued a
Director's Determination that is consistent with Council Policy K-4, the following
discussion is provided to the Council for informational purposes and addresses the main
points raised in the appeal and the Chatten-Brown comment letter.
Staff Resaonse to Chatten-Brown Comments
The central argument of the appeal is the belief that hotel room allocations provided in
the General Plan cannot be converted to dwelling unit allocations without an amendment
to the General Plan Land Use Element, and if an amendment application were processed,
a vote of the electorate would be required.
This argument misses the fact that Charter Section 423 only applies when there is a
"major" amendment to the General Plan and ignores the authority granted to the
Community Development Director to make interpretations pursuant to NBMC Section
20.12.020(E) and 21.12.020(E) as discussed in more detail in the sections below. The
Director's Determination does not amend the General Plan, and instead relies upon the
existing authority found in the General Plan, the Municipal Code, and the Local Coastal
Program (LCP) for the Community Development Director to determine that an unlisted
land use may be allowed without having to amend the General Plan or LCP. Since there
is no amendment of the General Plan, Charter Section 423 does not apply. Chatten-
Brown's attempt to argue that a General Plan Amendment should occur ignores the fact
that the NBMC allows for this Director's Determination without the need for such an
amendment.
Authority for Interpretation Vested in the City Council
The City Council has the inherent authority to adopt policies and regulations subject to
applicable laws, the State of California Constitution, and the City Charter. This authority
includes interpreting the General Plan and any policy or regulations promulgated to
implement it.
The City Council adopted Council Policy K-4 that specifically contemplates the conversion
of up to 30 percent of their approved hotel rooms into residential units on a one-for-one
basis.
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Council Policy K-4 deems the limited conversion to be an accessory use to the principal
use of a hotel and finds the accessory residential use at hotels consistent with the General
Plan, Zoning Code, and Local Coastal Plan Program land use and zoning designations.
The Director's Determination was issued by the Community Development Director in
furtherance of this policy, and it includes additional detail for the implementation that is
consistent with Council Policy K-4.
Authority for Interpretation in Title 20 and Compliance with General Plan
The Chatten-Brown letter repeatedly suggests that the Director's Determination exceeds the
scope of the Director's interpretation authority. Title 20 (Planning and Zoning) of the NBMC
is intended to carry out the policies of the City of Newport Beach General Plan. Section
20.10.030 (Authority—Relationship to General Plan) of the NBMC states that the Zoning
Code is the primary tool used by the City to carry out the goals, objectives and policies of
the General Plan. It is intended that all provisions of the Zoning Code be consistent with the
General Plan and that any development, land use or subdivision approved in compliance
with these regulations will also be consistent with the General Plan. Section 20.12.020
(Rules of Interpretation) of the NBMC clearly authorizes the Community Development
Director to interpret the meaning of provisions of the Zoning Code and that an unlisted land
use may be allowed provided certain findings are made. The draft resolution (Attachment
A) includes facts in support of the required findings for the determination. Since Title 20
clearly grants the Director with the authority to interpret the meaning of provisions of the
Codes, including definitions, and unlisted uses of land, a General Plan Amendment is not
needed.
Authority for Interpretation in Title 21 and Compliance with Local Coastal Program
Title 21 (Local Coastal Program Implementation Plan) of the NBMC is intended to carry out
the policies of the City of Newport Beach Coastal Land Use Plan and Coastal Act of 1976.
Section 21.10.030 (Authority—Relationship to Coastal Land Use Plan) of the NBMC states
that the Local Coastal Program Implementation Plan is the primary tool used by the City to
carry out the goals, objectives and policies of the Coastal Land Use Plan. It is intended that
all provisions of the Local Coastal Program Implementation Plan be consistent with the
Coastal Land Use Plan and that any development, land use or subdivision approved in
compliance with these regulations will also be consistent with the Coastal Land Use Plan,
and that if any proposed development is located between the first public road and the sea
or shoreline of any body of water located within the coastal zone, any approved development
must be in conformity with the public access and recreation policies of Chapter 3 of the
Coastal Act. Director's Determination No. DD2021-001 does not impact any properties
located within the first public road and the sea or shoreline of any body of water. Section
21.12.020 (Rules of Interpretation) of the NBMC clearly authorizes the Community
Development Director to interpret the meaning of provisions of the Implementation Plan.
Similar to the discussion above related to Title 20, Title 21 clearly grants the Director with
the authority to interpret the meaning of provisions of the Codes, including definitions, and
that an unlisted land use may be allowed provided certain findings are made.
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The draft resolution (Attachment A) includes facts in support of the required findings for the
determination. Since Title 21 clearly grants the Director with the authority to interpret the
meaning of provisions of the Codes, including definitions, and unlisted uses of land, a Local
Coastal Program Amendment is not needed.
The Chatten-Brown letter also claims that NBMC Section 21.48.025(D) of Title 21 prohibits
the conversion of hotel rooms in the entire coastal zone into residential units; however,
Chatten-Brown is misreading Section 21.48.025(D) in an attempt to apply it in a way not
supported by the language of the statute.
Specifically, NBMC Section 21.48.025(D) provides, "The conversion of any hotel or motel or
similar visitor accommodation for which a certificate of occupancy has been issued on or
before July 14, 2009, to a limited use overnight visitor accommodation (LUOVA) shall
be prohibited [emphasis added], except as provided in subsection (D)(1) of this
subsection." NBMC Section 21.70.020(L) defines LUOVAs as "a development in which a
purchaser receives the right in perpetuity, for life, or for a term of years, to the recurrent,
exclusive use or occupancy of an ownership interest in a lot, unit, room(s), or segment of
real property, annually or on some other seasonal or periodic basis, for a period of time that
has been allocated from the use of occupancy periods into which the project has been
divided and shall include, but not be limited to, time share estate, interval ownership,
fractional ownership, vacation license, vacation lease, club membership, time share use,
hotel/condominium, or uses of a similar nature."
Unlike the prohibited LOUVAs referenced in the paragraph above, the accessory residential
units authorized by the Director's Determination authorizes full-time, year-round residences
and does not authorize units to be sold or used on a seasonal or periodic basis. Thus, the
conversion of hotel units into accessory residential units is not explicitly subject to the
prohibition in Section 21.48.025(D).
Primary Hotel Land Use Remains Unchanged
The Chatten-Brown letter argues that the definition of hotels in Title 20 and Title 21 prohibits
residential uses. They base their argument on the fact that the first sentences of the hotel
definition provide that a hotel is rented "to transient guests for sleeping purposes". The
implication being that accessory residential units are not rented to transients and therefore
they are not hotels; however, this argument ignores the second sentence in the definition,
which provides that "Related accessory uses may include conference rooms and meetings,
restaurant, bars, and recreational facilities."
The Director's Determination does not attempt to classify an accessory residence as a hotel
or change the primary land uses of a zoning district. Rather, the Director's Determination
only permits residential dwellings as an accessory use to the primary use of the site as a
resort hotel and only in a very limited and narrow basis. Under Chatten-Brown's logic, none
of the listed accessory uses in the hotel definition would be allowed because they are not
rented "to transient guests for sleeping purposes".
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The Director's Determination does not change the primary land use of the underlying
zoning district. The Director's Determination contains regulations and restrictions to ensure
the allowance of residential accessory units within a hotel property does not change the
primary land use and underlying characteristics within the applicable zoning districts. To
ensure the residential use remains accessory, the Director's Determination, consistent with
Council Policy K-4, establishes the following parameters:
• Applicability only to resort hotels- Resort hotels are self-contained destinations that
provide for all travel accommodation needs in one location, including but not limited
to restaurants, bars, shopping and recreational facilities. The trend in the hotel
industry is to also locate limited residential uses at a hotel property to create resort
amenities that can be shared by residents, visitors and tourists alike. Therefore,
mixed-use hotels are a form of accommodation that affords buyers with access to
the full range of services, facilities and amenities provided by the hotel.
• One -for -One Allowance- Approved hotel rooms will be allowed to convert to
residential uses on a one-for-one basis to ensure the accessory residential use
does not involve a greater level of activity, population density, traffic generation,
parking, dust, odor, noise, or similar impacts.
• Maximum Percentage of Development- The conversion of hotel rooms to
residential uses will be limited to no more than 30 percent of the total number of
approved hotel rooms. This restriction will further ensure that residential uses
remain an accessory use to the hotel and do not change the primary use of the
property from hotel to residential.
• Mitigation for potential impacts to public access, affordable housing, and the loss of
transient occupancy tax.
It is also important to note that hotel rooms and residential units are used in a similar
nature. Both uses provide for areas to bathe and sleep, and some hotels provide facilities
to cook similar to a residential use. In fact, the California Building Code (CBC) and
California Fire Code (CFC) categorized both uses in the same Occupancy Group of "R"
for residential. This is based on the nature of the hazards and risks to building occupants.
The hazards and risk to occupants are the same when considered under the CBC and
CFC. The biggest difference between the two types of uses is the length of stays. Hotel
uses are transitory and traditionally less than 30 days and occupants of dwelling units
stay more than 30 days.
An indirect but consequential benefit of City Council K-4 is continued sustainability for
hotels in Newport Beach. The hotel industry has been one of the hardest hit industries
due to the COVID-19 pandemic. Allowing accessory residential units at a hotel property
gives hotels an opportunity to recover from the recent economic downturn, and continues
a long-established trend within the hotel industry of placing residential units at resort hotel
destinations.
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Mixed-use hotels provide an opportunity to revitalize older and/or underperforming hotels
to maintain their competitive standing by creating multiple revenue streams that can
support improvements to the property, enhancing the visitor experience. Economies of
scale created by shared facilities, amenities and services add additional benefit to mixed-
use hotel developments. This cross pollination of business benefits both the hotel and the
resident.
Consistency with Prior Determinations and Interpretations
Director's Determination No. DD2021-001 is consistent with prior determinations, which
allowed for unlisted uses within the City's zoning districts. For example, in 2017, the
Community Development Director issued Director's Determination No. DD2017-002
(PA2017-207), which allowed Fire Station No. 2 within the Visitor Serving Commercial (CV)
Zoning District. Although Chatten-Brown claims this 2017 determination is "irrelevant"
because it did not involve residential uses; they ignore that this prior determination also
involved property located in the Coastal Zone and it also clarified that an unlisted use was
allowed in the CV zone. Therefore, the prior 2017 determination is relevant and similar to
the subject Director's Determination such that both were an exercise of the Director's
authority provided pursuant to the NBMC to provide clarity related to unlisted uses in the CV
zone.
Contrary to the claim presented in the Chatten-Brown letter that the Determination is a
"dangerous precedent for redefining long-established land uses on a whim...", the City has
previously approved the conversion of other land uses to residential units, without requiring
a General Plan Amendment. The Director's Determination is consistent with past City
interpretations and approvals, all of which were supported by substantial evidence and
subject to public hearing and community input. In 2012, the City approved the conversion of
17 tennis courts to 27 hotel rooms without a General Plan Amendment (City Council
Ordinance 2012-2). Additionally, in 2012, the City approved the conversion of 79 hotel
rooms to 79 residential units without a General Plan Amendment (City Council Ordinance
2012-19). Therefore, the Determination, and implementation of Council Policy K-4, is
consistent with the City's past interpretation of the General Plan and Charter Section 423
because the interpretation would not allow for an increase in land use intensity, density or
result in traffic impacts as a result of an increase in traffic trips, beyond what is already
permitted in the General Plan.
Charter Section 423 Thresholds for a Vote
Of the 22 hotels in the City, only four meet the parameters of being a resort hotel located
outside the Coastal Commission Appeal Jurisdiction area, and three hotels are located
outside the coastal zone. The following table lists the four hotels that Policy K-4 and the
Director's Determination apply to.
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Table 1. Applicable Resort Hotel Properties in the City & Potential Yield
Hotel Name
Location
Approved
Hotel
Rooms
Maximum
Accessory
Residential
Renaissance Newport Beach
4500 MacArthur Blvd.
471
141
Fashion Island Hotel
690 Newport Center Dr.
295
88
Hyatt Regency John Wayne
Airport
4545 MacArthur Blvd.
349
104
Newport Beach Marriott
900 Newport Center Dr.
532
159
Maximum Accessory Units
492
Both the appeal and the Chatten-Brown letter suggest that since the potential dwelling unit
yield could exceed 100 units, which is the threshold requiring a vote of the electorate of an
approved General Plan Amendment pursuant to Charter Section 423, the interpretation is
invalid. But as noted previously, the City Council has the authority to determine the meaning
of the General Plan consistent with applicable laws including the City Charter, and the
Director's Determination was based upon the authority provided in Council Policy K-4,
NBMC Sections 20.10.030, 20.12.020, 21.10.030 and 21.12.020. The NBMC, General Plan,
and LCP grant the Community Development Director the authority to interpret the meaning
of provisions of both NBMC Title 20 and LCP Title 21, without having to amend the General
Plan. The General Plan and the City Charter do not provide limits on the scope of an
interpretation nor do they provide any specific provisions contrary to Council Policy K-4 or
the Director's Determination.
The conversion of existing hotel units to accessory residential units in compliance with
Council Policy K-4 and the Director's Determination would not require a General Plan
Amendment. Council Policy A-18 (Attachment K) was adopted to implement Charter
Section 423. It only provides guidance for the processing of the General Plan Amendment
applications to determine when a vote of the electorate is required pursuant to Charter
Section 423. Since the matter at hand is not a General Plan Amendment application,
Charter Section 423 and Council Policy A-18 are not applicable. Finally, the City Council
has the authority to amend or revoke a City Council policy.
The purpose of Charter Section 423 is to give the electorate the ability to vote to either
confirm or deny a City Council -approved General Plan Amendment that significantly
generates traffic resulting from increases in residential density or non-residential intensity
measured through a variety of metrics. Although the Determination allows for the
conversion of hotel rooms into accessory residential units, it only allows so on a one-for-
one basis to maintain overall unit count and ensures there is no increase in trips
consistent with the purposes of Charter Section 423 and Council Policy A-18. The traffic
generation associated with a residential use is comparable to the traffic generation for a
resort hotel use. According to the Institute of Transportation Engineers Trip Generation
Manual (10th Edition), a Multi -Family Housing Mid -Rise (3 to 10 levels) development (ITE
Code 221) would generate 0.36 and 0.44 average AM and PM weekday peak hour trips
per dwelling unit. A Resort Hotel (ITE Code 330) would generate 0.32 and 0.41 average
AM and PM weekday peak hour trips per room.
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The published ITE trip rates are generally for stand-alone development (e.g. stand-alone
hotel or multi -family housing buildings); however, the reality is accessory residential
dwelling units will have lower rates due to the additional on-site amenities provided.
Therefore, following conversion of a hotel room to a residential unit, the anticipated traffic
generation would be similar or lower. Based on the similar or lower vehicular trips
associated with accessory residential uses, levels of odor, dust, noise, or similar impacts
at a hotel property with accessory residential uses will be similar or less.
Concerns with Community Review of a Proiect
To ensure the public has an opportunity to participate in any review of potential development
taking advantage of the Director's Determination, a required parameter is that a property
owner shall, at a minimum, process a conditional use permit and coastal development permit
(if applicable). These permits would require review and approval by the Planning
Commission at a noticed public hearing. In reviewing said applications, the Planning
Commission, and City Council on appeal, would ensure site suitability, development
compatibility, and the appropriateness of the operational characteristics, including parking.
For projects in the coastal zone, the required coastal development permit would ensure a
project is reviewed for consistency with the City's Local Coastal Program and protection of
coastal resources and public access.
Request to Delay and Incorporate in On -Going General Plan Update Process
The Chatten-Brown letter states that the Director's Determination is improperly siloed from
an already ongoing General Plan Update process focused on increasing housing availability
in the City. The letter further comments that segmentation of these processes is both
inefficient and jeopardizes the coherence of the City's housing strategy going forward.
However, this Director's Determination was created in tandem with the ongoing General
Plan Housing Element update process and is intended to help the City meet its RHNA.
Because the Director has the authority to make the Determination under the Municipal Code
and LCP as they exist today, there is no need to include the delayed Director's
Determination as part of the ongoing Housing Element update process. Council Policy K-4
reflects that there will be many solutions, some implemented in the short-term, and some
implemented in the long-term, that are needed to create housing opportunities within the
City. The General Plan update process is on-going and evolving and this Director's
Determination is part of this process that represents a first step, not a last step, towards
housing solutions.
Summary
Staff believes the appeal is not supported by the facts and should be denied. The City
Council and the Community Development Director have the authority to make the
interpretations provided in Council Policy K-4 under the City Charter, Municipal Code,
LCP and General Plan, and Director's Determination No. DD2021-001 is consistent with
Council Policy K-4.
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The Director's Determination was properly made consistent with the intent of City Council
Policy K-4. Additionally, the determination interprets existing sections in the General Plan,
and does not amend the General Plan. Therefore, the determination does not violate City
Charter Section 423 and City Council Policy A-18 because they are only applicable when
there is a General Plan Amendment.
FISCAL IMPACT:
There is no fiscal impact related to this item.
ENVIRONMENTAL REVIEW:
This Director's Determination is not subject to the California Environmental Quality Act in
accordance with Section 21065 of the California Public Resources Code ("CEQA") and
Sections 15060 (c)(2), 15060 (c)(3), and 15378 of the California Code of Regulations Title
14, Division 6, Chapter 3 ("CEQA Guidelines"). The Director's Determination is also
exempt pursuant to CEQA Guidelines Section 15061(b)(3), the general rule that CEQA
applies only when there is the potential for causing a significant effect on the environment.
While this Director's Determination would result in an interpretation that allows residential
uses as an accessory use to resort hotels, it does not authorize new development that
would directly result in physical change to the environment.
NOTICING:
Notice of this hearing was published in the Daily Pilot, mailed to local agencies, persons
requesting notice, and the California Coastal Commission consistent with the provisions
of the Municipal Code. Additionally, the item appeared on the agenda for this meeting,
which was posted at City Hall and on the City website.
ATTACHMENTS:
A. Resolution No. 2021-78
B. Council Policy K-4
C. Director's Determination No. DD2021-001
D. May 6, 2021 Planning Commission Staff Report
E. May 6, 2021 Planning Commission Meeting Minutes
F. Planning Commission Resolution No. PC2021-016
G. July 8, 2021 Planning Commission Staff Report
H. July 8, 2021 Planning Commission Meeting Minutes
I. July 22, 2021 SPON Appeal
J. July 8, 2021 Chatten-Brown Comment Letter
K. Council Policy A-18, including Charter Section 423
21-12
ATTACHMENT A
RESOLUTION NO. 2021-78
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, DENYING AN APPEAL
AND UPHOLDING THE COMMUNITY DEVELOPMENT
DIRECTOR'S DETERMINATION NO. DD2021-001 AND
ASSOCIATED FINDINGS THAT ACCESSORY
RESIDENTIAL IS AN ALLOWED USE WITHIN RESORT
HOTELS (PA2021-096)
WHEREAS, at the February 9, 2021 City Council Study Session related to the
Housing Element Update, the City Council provided staff direction to develop a new Council
policy and amend the City of Newport Beach's ("City") land use and zoning codes related to
housing opportunities;
WHEREAS, at the March 9, 2021 City Council meeting, the City Council adopted
Resolution No. 2021-18 adding City Council Policy K-4 (Reducing the Barriers to the
Creation of Housing);
WHEREAS, the City Council adoption of Council Policy K-4 was not challenged by
the appellant or any other party, and the time for such a challenge has elapsed;
WHEREAS, Council Policy K-4 recognizes that the City has several major
constraints on existing lands that severely limit or totally restrict the City's ability to
accommodate growth to the extent identified in the Sixth Cycle Regional Housing Needs
Allocation ("RHNA");
WHEREAS, as a result of these constraints, new and flexible land use and zoning
regulations and strategies should be developed in order to reasonably and practically
accommodate this ambitious State housing mandate while protecting the character and
maintaining a quality of life that makes Newport Beach a special place to live, work, and
visit;
WHEREAS, Council Policy K-4 directs City staff to develop, modify as necessary,
and aggressively implement various strategies and action plans that are designed to
accelerate housing production consistent with the policy, including encouraging and
incentivizing the development of mixed-use hotels;
WHEREAS, the goals of Council Policy K-4 include interpreting ambiguities in the
City's General Plan, Coastal Land Use Plan, Title 20 (Planning and Zoning) and Title 21
(Local Coastal Program Implementation Plan) of the Newport Beach Municipal Code
("NBMC") to allow hotels, located outside of the Coastal Commission Appeal Jurisdiction,
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to convert up to 30 percent of their approved hotel rooms into residential units on a one-
for-one basis;
WHEREAS, such an interpretation would allow for residential units to be deemed
an accessory use to the principal use of a hotel and find that such residential uses are
consistent with the underlying General Plan, Coastal Land Use Plan and NBMC land use
and zoning designations;
WHEREAS, mixed-use hotels are an established trend in the hospitality industry
that incorporate hotel -branded residential units as an accessory use located within a
resort hotel complex where residents enjoy access to the full range of services, facilities,
and amenities provided by the hotel operator or brand;
WHEREAS, there are currently 22 hotels in the City, of which 10 hotels qualify as a
resort hotel, a self-contained destination that provides for all travel accommodation needs
in one location, including but not limited to restaurants, bars, shopping, and recreational
facilities;
WHEREAS, of the 10 resort hotels in the City, one hotel is located in the coastal
zone, but completely outside the Coastal Commission Appeal Jurisdiction area, and three
hotels are located outside the coastal zone, therefore, the following four hotels meet the
criteria of a resort hotel located outside the Coastal Commission Appeal Jurisdiction:
a. Renaissance Newport Beach located at 4500 MacArthur Boulevard
("Renaissance") is designated MU -H2 (Mixed -Use Horizontal) by the General
Plan Land Use Element and is located within the Koll Center Planned
Community (PC15) Zoning District. Hotels are an allowed use, subject to a
conditional use permit. The Renaissance is not located within the coastal
zone,
b. Hyatt Regency John Wayne Airport located at 4545 MacArthur Boulevard
("Hyatt") is designated MU -H2 (Mixed -Use Horizontal) by the General Plan
Land Use Element and is located within Hotel Site 1 of the Newport Place
Planned Community (PC11) Zoning District. Hotels are an allowed use,
subject to a conditional use permit. The Hyatt is not located within the coastal
zone,
C. Fashion Island Hotel located at 690 Newport Center Drive ("Fashion Island
Hotel") is designated MU -H3 (Mixed -Use Horizontal) by the General Plan
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Land Use Element and is located within Block 600 Subarea of the North
Newport Center Planned Community (PC56) Zoning District. Hotels are an
allowed use, subject to a conditional use permit. The Fashion Island Hotel is
not located within the coastal zone, and
d. Newport Beach Marriott located at 900 Newport Center ("Marriott") is
designated CV (Visitor Serving Commercial) by the General Plan Land Use
Element and is located within the Commercial Visitor -Serving Zoning District.
Hotels are an allowed use, subject to a conditional use permit. The Marriott is
located within the coastal zone. The Coastal Land Use Plan category is CV -
B (Visitor Serving Commercial) and is located within the CV (Commercial
Visitor -Serving) Coastal Zoning District. Hotels are allowed subject to a
conditional use permit and coastal development permit;
WHEREAS, the Director's Determination did not amend the General Plan, and
instead relied upon the existing authority found in the General Plan, the Municipal Code,
the LCP, Council Policy K-4, and NBMC Sections 20.10.030, 20.12.020, 21.10.030 and
21.12.020;
WHEREAS, Title 20 (Planning and Zoning) of the NBMC ("Title 20" or "Zoning
Code") is intended to carry out the policies of the City of Newport Beach General Plan;
WHEREAS, Section 20.10.030 (Authority -Relationship to General Plan) of the
NBMC, states that the Zoning Code is the primary tool used by the City to carry out the
goals, objectives, and policies of the General Plan with the intent that all provisions of the
Zoning Code be consistent with the General Plan and any development, land use, or
subdivision approved in compliance with these regulations will also be consistent with the
General Plan;
WHEREAS, the PC11, PC15, and PC56 Planned Community Development Plans
state that the requirements of the Zoning Code shall apply, unless otherwise stated;
WHEREAS, Section 20.12.020 (Rules of Interpretation) of the NBMC authorizes
the Community Development Director ("Director") to interpret the meaning of provisions of
the Zoning Code;
WHEREAS, Title 21 (Local Coastal Program Implementation Plan) of the NBMC is
intended to carry out the policies of the City of Newport Beach Coastal Land Use Plan and
Coastal Act of 1976;
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WHEREAS, Section 21.10.030 (Authority—Relationship to Coastal Land Use
Plan) of the NBMC states that the Local Coastal Program Implementation Plan is the
primary tool used by the City to carry out the goals, objectives, and policies of the Coastal
Land Use Plan with the intent that all provisions of the Local Coastal Program
Implementation Plan be consistent with the Coastal Land Use Plan and any development,
land use, or subdivision approved in compliance with these regulations will also be
consistent with the Coastal Land Use Plan, and that if any proposed development is located
between the first public road and the sea or shoreline of any body of water located within
the coastal zone, any approved development must be in conformity with the public access
and recreation policies of Chapter 3 of the Coastal Act;
WHEREAS, Director's Determination No. DD2021-001 does not impact any
properties located within the first public road and the sea or shoreline of any body of water;
WHEREAS, Section 21.12.020 (Rules of Interpretation) of the NBMC authorizes
the Community Development Director to interpret the meaning of provisions of the
Implementation Plan;
WHEREAS, both Title 20 (Planning and Zoning) and Title 21 (Local Coastal
Program Implementation Plan) define "hotel" as an establishment that provides guest rooms
or suites for a fee to transient guests for sleeping purposes. Access to units is primarily from
interior lobbies, courts, or halls. Related accessory uses may include conference rooms and
meeting rooms, restaurants, bars, and recreational facilities. Guest moms may or may not
contain kitchen facilities for food preparation. Hotels with kitchen facilities are commonly
known as extended stay hotels. A hotel operates subject to taxation under California
Revenue and Taxation Code Section 7280;
WHEREAS, neither Title 20 (Planning and Zoning) nor Title 21 (Local Coastal
Program Implementation Plan) list residential uses as part of the definition of "hotel." Both
Title 20 and Title 21 definitions of "hotel" are out of date and do not reflect current industry
practice. Specifically, the definition of "hotel" has not been updated to designate residential
uses as an accessory use, which has become common practice for destination resort hotels
(mixed-use hotels);
WHEREAS, while the definition of a hotel does not prohibit residential uses, a
Director's Determination is necessary to fill the gap between contemporary practice and the
exact wording of Title 20 and Title 21,
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WHEREAS, on April 30, 2021, consistent with City Council's direction provided in
Council Policy K-4, the Community Development Director issued Director's Determination
No. DD2021-001 set forth in Exhibit 'A" which is attached hereto and incorporated herein
by reference, interpreting accessory residential as an allowed use within resort hotels;
WHEREAS, in issuing Director's Determination No. DD2021-001, the Community
Development Director was acting in accordance with the direction given by the City Council
in City Council Policy K-4, which policy is final and effective;
WHEREAS, on appeal, the issue before the City Council is limited to whether the
Director's Determination is consistent with City Council Policy K-4 because all questions
raised in the appeal regarding the consistency with City Charter Section 423 and City
Council Policy A-18 were fully and finally resolved by and through the adoption of City
Council Policy K-4;
WHEREAS, on May 14, 2021, Stop Polluting Our Newport ("SPON") filed an
appeal of the Director's Determination No. DD2021-001 alleging that the determination
improperly converts General Plan -approved hotel allocations into General Plan -approved
dwelling unit allocations without Greenlight (Charter Section 423) tracking, in
contravention of Council Policy A-18;
WHEREAS, the appeal also states that the determination adds the potential for
some 250 new dwelling units to the General Plan Statistical Area L1, which would require
voter approval if processed as a General Plan Amendment;
WHEREAS, the Planning Commission held a de novo public hearing on July 8,
2021, in the Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice
of time, place and purpose of the hearing was given in accordance with California
Government Code Section 54950 of seq. ("Ralph M. Brown Act") and Chapters 20.62 and
21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to,
and considered by, the Planning Commission at this hearing;
WHEREAS, at the conclusion of the public hearing, the Planning Commission
unanimously adopted Resolution No. PC2021-016 (6 ayes and 1 abstention) denying the
appeal and upholding the Director's Determination No. DD2021-001;
WHEREAS, on July 22, 2021, Stop Polluting Our Newport ("SPON") filed an
appeal of the Planning Commission's decision to uphold Director's Determination No.
DD2021-001 citing the reasons set forth in its May 14, 2021 appeal; and
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Resolution No. 2021 -
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WHEREAS, the City Council held a de novo public hearing on August 24, 2021, in
the Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice of time,
place and purpose of the hearing was given in accordance with the Ralph M. Brown Act
and Chapters 20.62 and 21.62 (Public Hearings) of the NBMC. Evidence, both written
and oral, was presented to, and considered by, the City Council at this hearing.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows:
Section 1: The City Council has considered the reasons cited in the appeal and
finds that Director's Determination No. DD2021-001 interpreting that residential uses are
permitted as an accessory use to hotels is authorized pursuant to Director's authority
granted in Sections 20.12.020 and 21.12.020 of the NBMC. The City Council finds that
Director's Determination No. DD2021-001 is consistent with City Council Policy K-4.
Although not necessary to deny the appeal, the City Council determines that the restrictions
described in Section 2 below will further ensure that residential uses remain an accessory
use to the hotel, do not increase the level of activity on a site, and do not change the
primary use of the property from hotel to residential. Director's Determination No.
DD2021-001 does not amend the General Plan, and instead relies on the existing
authority found in the General Plan, NBMC, and LCP for the Community Development
Director to determine an unlisted land use may be allowed. As such, an amendment to
the General Plan and Local Coastal Plan to change the land use designations or increase
the development limits is not required, and the determination does not violate City Charter
Section 423 and/or City Council Policy A-18.
Section 2: The City Council's denial of the appeal and upholding of the Director's
Determination No. DD2021-001 interpreting that residential uses are permitted as an
accessory use to hotels are subject to the following:
1. This interpretation shall only apply to resort hotels, a self-contained destination that
provides for all travel accommodation needs in one location, including but not limited
to restaurants, bars, shopping, and recreational facilities. Residents shall enjoy
access to the full range of services, facilities, and amenities provided by the hotel
operator or brand.
2. The hotel property relying upon this interpretation shall be located outside the appeal
area identified in California Public Resources Code Section 30603(a) as generally
depicted on the Post-LCP Certification Permit and Appeal Jurisdiction Map.
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3. Approved hotel rooms may be converted to residential units but only on a one-for-
one basis.
4. The residential use shall at all times be accessory to the hotel use, and the residential
units shall comprise no more than 30 percent of the approved hotel rooms.
5. The residential units may be located within a repurposed hotel or in a new residential
structure.
6. A property owner that desires to have an accessory residential use at their hotel shall
process a conditional use permit and coastal development permit (if applicable). In
reviewing said permits, the review authority shall ensure adequate parking is
provided to accommodate the residential units through surplus parking, shared
parking, or the adoption of a parking management plan.
7. Potential impacts to public access, affordable housing, and the loss of transient
occupancy tax must be mitigated by entering into a Development Agreement with the
City or by some other means deemed appropriate.
Section 3: In accordance with Section 20.12.020(E) (Rules of Interpretation —
Unlisted Uses of Land) of the NBMC, the Director, and the City Council on appeal, may
determine that a proposed land use that is not listed in Part 2 of this title (Zoning Districts,
Allowable Land Uses, and Zoning District Standards) may be allowed based on the
following findings and facts in support of findings as set forth below.
Finding:
A. The characteristics of, and activities associated with, the proposed use are equivalent
to those of one or more of the uses listed in the zoning district as allowable, and will
not involve a greater level of activity, population density, intensity, traffic generation,
parking, dust, odor, noise, or similar impacts than the uses listed in the zoning district;
Facts in Support of Finding:
1. The allowance of residential accessory units within a hotel will be regulated to
ensure the underlying characteristics and activities remain equivalent to the listed
hotel use within the applicable CV (Commercial Visitor -Serving) Coastal Zoning
District or PC (Planned Community) Zoning District.
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2. Approved hotel rooms will be allowed to convert to residential uses on a one-for-
one basis to ensure the accessory residential use does not involve a greater level
of activity, population density, traffic generation, parking, dust, odor, noise, or
similar impacts than the other uses listed within the applicable CV (Commercial
Visitor -Serving) Coastal Zoning District or PC (Planned Community) Zoning District.
3. The conversion of hotel rooms to residential uses will be limited to no more than
30 percent of the total number of approved hotel rooms. This restriction will further
ensure that residential uses remain an accessory use to the hotel and do not
change the primary use of the property from hotel to residential.
4. The traffic generation associated with a residential use is similar or less than the
traffic generation for a resort hotel use. According to the Institute of Transportation
Engineers Trip Generation Manual (10th Edition), a Multi -Family Housing Mid -Rise
(three [3] to ten [10] levels) development (ITE Code 221) would generate 0.36 and
0.44 average AM and PM weekday peak hour trips per dwelling unit. A Resort
Hotel (ITE Code 330) would generate 0.32 and 0.41 average AM and PM weekday
peak hour trips per room. The published ITE trip rates are generally for stand-alone
development (e.g. stand-alone hotel or multi -family housing buildings); however,
the reality is accessory residential dwelling units will have lower rates due to the
additional on-site amenities provided. Therefore, following conversion of a hotel
room to a residential unit, the anticipated traffic generation will be similar or lower.
5. Pursuant to Council Policy K-3 (Implementation Procedures for the California
Environmental Quality Act) and in compliance with Senate Bill 743, the conversion
of a resort hotel room to a residential unit is considered to be less than significant
impact on transportation/traffic and no further vehicle miles traveled ("VMT")
analysis is required since all trips associated with such conversion have already
been accounted for as approved hotel rooms. As a result, conversions are
expected to fall below the adopted land use screening threshold of 300 or less
daily trips. For ITE Code 330, there is no listed daily trip rate; however, the City
Traffic Phasing Ordinance states that if there is not an applicable rate, the City
Traffic Engineer may, in the exercise of his/her professional judgement, authorize
the use of trip generation rates in San Diego Association of Government's
(SANDAG) Traffic Generators or on the basis of actual site counts. The SANDAG
daily trip rate for Resort Hotel is eight (8) daily trips per room. The SANDAG daily
trip rate for Multi -Family Condominium is also eight (8) daily trips per unit.
Therefore, the conversion of a resort hotel room to a residential unit would result
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in same or lower daily trips, and below the screening threshold of 300 daily trips
requiring VMT analysis.
6. Based on the similar vehicular trips associated with accessory residential uses,
levels of odor, dust, noise, or similar impacts at a hotel property with accessory
residential uses is expected to be similar or less.
7. Mixed-use hotels are a form of accommodation that affords buyers with access to
the full range of services, facilities, and amenities provided by the hotel.
8. The definition of hotel allows related accessory uses such as conference rooms
and meeting rooms, restaurants, bars, and recreational facilities that can generate
additional parking demand substantially higher than residential parking rates. The
conversion of hotel rooms to residential units would constitute an amendment to the
conditional use permit. In reviewing such amendments, approval of the conditional
use permit would require ensuring adequate parking is provided to accommodate the
residential units through surplus parking, shared parking, or the adoption of a parking
management plan.
Finding:
B. The proposed use will meet the purposelntent of the zoning district that is applied to
the location of the use;
Facts in Support of Finding:
1. The CV (Commercial Visitor -Serving) Coastal Zoning District is intended to provide
for areas appropriate for accommodations, goods, and services intended to
primarily serve visitors to the City. Hotels are allowed in the CV (Commercial
Visitor -Serving) Coastal Zoning District subject to obtaining a conditional use permit
pursuant to Section 20.20.020 of the NBMC. A hotel with an accessory residential
use that is limited to no more than 30 percent of the approved hotel rooms will
primarily serve visitors to the City.
2. The resort hotels located within PC11, PC15, and PC56 are located within the MU -
H (Mixed -Use Horizontal) land use category of the General Plan. The MU -H
designations are intended to provide for the development of areas for a horizontally
distributed mix of uses, which may include general or neighborhood commercial,
commercial offices, multi -family residential, visitor -serving and marine -related
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uses, and/or buildings that vertically integrate residential with commercial uses.
The hotel -branded units are consistent with the MU -H designations as residential
units are clearly allowed, and a hotel with an accessory residential use that is
limited to no more than 30 percent of the approved hotel rooms will primarily serve
visitors to the City.
3. Mixed-use hotels are common practice within the hotel industry and provide visitor
serving amenities and services consistent with the CV (Commercial Visitor -Serving)
Coastal Zoning District and PC (Planned Community) Zoning District.
4. Fact in Support of Finding A.7 is hereby incorporated.
Findinq:
C. The proposed use will be consistent with the goals, objectives, and policies of the
General Plan, or any applicable specific plan;
Facts in Support of Finding:
1. The CV (Commercial Visitor -Serving) Coastal Zoning District General Plan land use
designation is intended to provide for areas appropriate for accommodations,
goods, and services intended to serve primary visitors to the City. By limiting
residential uses to an accessory use at a hotel property, the primary purpose of
the hotel meets the goals, objectives and policies of the General Plan, or any
applicable specific plan.
2. The MU -H (Mixed -Use Horizontal) designations are intended to provide for the
development of areas for a horizontally distributed mix of uses, which may include
general or neighborhood commercial, commercial offices, multi -family residential,
visitor -serving and marine -related uses, and/or buildings that vertically integrate
residential with commercial uses. Mixed-use hotels are consistent with the MU -H
designations as residential units are clearly allowed, and a hotel with an accessory
residential use that is limited to no more than 30 percent of the approved hotel
rooms will primarily serve visitors to the City.
3. The trend in the hotel industry is to locate limited residential uses at a hotel property
to create resort amenities that can be shared by residents, visitors, and tourists
alike.
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4. This interpretation implements Land Use Element Policy LU 2.3 (Range of
Residential Choices) by providing new opportunities for the development of
residential units in response to community and regional needs for housing.
5. This interpretation implements Land Use Element Policy LU 3.2 (Growth and
Change) which encourages enhancement of existing neighborhoods, districts, and
corridors, allowing for re -use and infill with uses that are complementary in type,
form, scale, and character. Changes in use and/or density/intensity should only be
considered in those areas that are economically underperforming, are necessary
to accommodate the City's share of regional population growth, improve the
relationship and reduce commuting distance between home and jobs, or enhance
the values that distinguish Newport Beach as a special place to live for its
residents. The hotel industry has been one of the hardest hit industries due to the
COVID-19 pandemic and for some hotels, a full recovery of the industry is not
anticipated for many years. Mixed-use hotels provide an opportunity to revitalize
older and/or underperforming hotels to maintain their competitive standing by
creating multiple revenue streams that can support improvements to the property
enhancing the visitor experience. Economies of scale created by shared facilities,
amenities, and services add additional benefit to mixed-use hotel developments.
This cross pollination of business benefits both the hotel and the resident. It may
also increase occupancy rates at the resort by creating increased synergy between
uses and social gathering opportunities, boosting transient occupancy taxes while
providing in -fill housing opportunities to partially assist the City in meeting its RHNA
obligation in highly desirable and built -out areas.
Finding:
D. The proposed use is not listed as allowable in another zoning district;
Fact in Support of Finding:
Hotels with an accessory residential use are not listed as allowable in any other zoning
district. Stand-alone residential uses, which are allowable in another zoning district, would
not be permitted under this interpretation.
Finding:
E. The proposed use is not a prohibited or illegal use.
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Fact in Support of Finding:
Hotels with an accessory residential use are neither a prohibited or an illegal use.
Section 4: In accordance with Section 21.12.020(E) (Rules of Interpretation —
Unlisted Uses of Land) of the NBMC, the Director, and Planning Commission on appeal,
may determine that a proposed land use that is not listed in Part 2 of this title (Coastal
Zoning Districts, Allowable Land Uses, and Coastal Zoning District Standards) may be
allowed based on the following findings and facts in support of findings as set forth below:
Finding:
F. The characteristics of, and activities associated with, the proposed use are equivalent
to those of one or more of the uses listed in the coastal zoning district as allowable,
and will not involve a greater level of activity, population density, intensity, traffic
generation, parking, dust, odor, noise, or similar impacts than the uses listed in the
coastal zoning district;
Facts in Support of Finding:
1. The allowance of residential accessory units within a hotel will be regulated to
ensure the underlying characteristics and activities remain equivalent to the listed
hotel use within the applicable CV (Commercial Visitor -Serving) Coastal Zoning
District.
2. Approved hotel rooms will be allowed to convert to residential uses on a one-for-
one basis to ensure the accessory residential use does not involve a greater level
of activity, population density, traffic generation, parking, dust, odor, noise, or
similar impacts than the other uses listed within the applicable CV (Commercial
Visitor -Serving) Coastal Zoning District.
3. The conversion of hotel rooms to residential units would require a coastal
development permit. The coastal development permit review will require adequate
parking be provided to accommodate the residential units through surplus parking,
shared parking, or the adoption of a parking management plan, and to ensure the
protection of lower-cost visitor accommodations.
4. Facts in Support of Finding A.3 through A.8 are hereby incorporated by reference.
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Finding:
G. The proposed use will meet the purposefintent of the coastal zoning district that is
applied to the location of the use;
Facts in Support of Finding:
1. The CV (Commercial Visitor -Serving) Zoning District is intended to provide for areas
appropriate for accommodations, goods, and services intended to primarily serve
visitors to the City. A hotel with an accessory residential use that is limited to no
more than 30 percent of the approved hotel rooms will primarily serve visitors to
the City.
2. Mixed-use hotels are common practice within the hotel industry and provide visitor
serving amenities and services consistent with the CV (Commercial Visitor -Serving)
Coastal Zoning District.
Finding:
H. The proposed use will be consistent with the goals, objectives, and policies of the
Coastal Land Use Plan,-
Facts
lan,
Facts in Support of Finding:
1. The CV (Commercial Visitor -Serving) Coastal Zoning District Coastal Land Use Plan
designation is intended to provide for areas appropriate for accommodations,
goods, and services intended to serve primary visitors to the City. By limiting
residential uses to an accessory use at a hotel property, the primary purpose of
the hotel meets the goals, objectives and policies of the Coastal Land Use Plan
that prioritize visitor -serving commercial recreational facilities designed to enhance
public opportunities for coastal recreation over other uses.
2. The trend in the hotel industry is to locate limited residential uses at a hotel property
to create resort amenities that can be shared by residents, visitors, and tourists
alike.
3. This interpretation would restrict its applicability to hotel properties located outside
of the appeal areas identified in the California Public Resources Code Section
30603(a) as generally depicted on the Post-LCP Certification Permit and Appeal
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Resolution No. 2021 -
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Jurisdiction Map. The applicability of this restriction ensures that coastal access
and the most sensitive coastal -dependent uses are not impacted.
4. Any development would be required to adhere to all LCP goals and policies
including those related to public access and resource protection, and the protection
of lower-cost visitor accommodations.
Finding:
1. The proposed use is not listed as allowable in another coastal zoning district; and
Fact in Support of Finding:
Hotels with an accessory residential use are not listed as allowable in another coastal
zoning district. Separate or stand-alone residential uses operating as primary land uses,
which are allowable in another coastal zoning district, would not be permitted under this
interpretation.
Finding:
J. The proposed use is not a prohibited or illegal use.
Fact in Support of Finding:
Hotels with an accessory residential use are neither a prohibited or an illegal use.
Section 5: The recitals provided in this resolution are true and correct and are
incorporated into the operative part of this resolution.
Section 6: If any section, subsection, sentence, clause or phrase of this
resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this resolution. The City
Council hereby declares that it would have passed this resolution, and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
Section 7: The City Council hereby finds this Director's Determination is not
subject to the California Environmental Quality Act ("CEQA") pursuant to Sections
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Resolution No. 2021 -
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15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect
physical change in the environment) and 15060(c)(3) (the activity is not a project as
defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title
14, Division 6, Chapter 3, because it has no potential for resulting in physical change to
the environment, directly or indirectly. The Director's Determination is also exempt
pursuant to CEQA Guidelines Section 15061(b)(3), the general rule common sense
exemption that CEQA applies only when there is the potential for causing a significant effect
on the environment. Specifically, the determination is for the purpose of interpreting the
Zoning Code and Local Coastal Program Implementation Plan. This action will not change
the existing land use designations, will not increase intensity of use, and will not authorize
new development that would directly result in physical change to the environment.
Section 8: This resolution shall take effect immediately upon its adoption by the
City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 24th day of August 2021.
Brad Avery
Mayor
ATTEST:
Leilani 1. Brown
City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
'On�, C e��
Aaron C. Harp
City Attorney
Attachment(s) — Exhibit A - Director's Determination No. DD2021-001
21-27
CITY OF NEWPORT BEACH
COMMUNITY DEVELOPMENT DEPARTMENT
100 Civic Center E) rive
Newport Beach, California 92660
949 644-3200
newportbeachca.gov/communitydevelopment
To: Planning Division, Community Development Department
From: Seimone Jurjis, Community Development Director
Date: April 30, 2021
Re: Director's Determination No. DD2021-001 Interpreting Accessory
Residential as an Allowed Use within Resort Hotels (PA2021-096)
Title 20 (Planning and Zoning) and Title 21 (Local Coastal Program Implementation
Plan) of the Newport Beach Municipal Code ("NBMC") define "hotel" as an
establishment that provides guest rooms or suites for a fee to transient guests for
sleeping purposes. Access to units is primarily from interior lobbies, courts, or halls.
Related accessory uses may include conference rooms and meeting rooms,
restaurants, bars, and recreational facilities. Guest rooms may or may not contain
kitchen facilities for food preparation. Hotels with kitchen facilities are commonly
known as extended stay hotels. A hotel operates subject to taxation under California
Revenue and Taxation Code Section 7280,
Neither Title 20 (Planning and Zoning) nor Title 21 (Local Coastal Program
Implementation Plan) list residential uses as part of the definition of "hotel". Both Title
20 and Title 21 definitions of "hotel" are out of date and do not reflect current industry
practice. Specifically, the definition of "hotel" has not been updated to designate
residential uses as an accessory use, which has become common practice for
destination resort hotels (mixed-use hotels). While the definition of a hotel does not
prohibit residential uses, a Director's Determination is necessary to fill the gap
between contemporary practice and the exact wording of Title 20 and Title 21.
Sections 20.12.020 and 21.12.020 (Rules of Interpretation) of the NBMC authorize
the Community Development Director to interpret the meaning of provisions of the
Zoning Code and Local Coastal Program Implementation Plan.
Background
Council Policy K-4 (Reducing the Barriers to the Creation of Housing)
At the March 9, 2021 City Council meeting, the City Council adopted Resolution No.
2021-18 adding City Council Policy K-4 (Reducing the Barriers to the Creation of
Housing). Council Policy K-4 recognizes that the City has several major constraints
on existing lands that severely limit or totally restrict the City's ability to
Interpreting Accessory Residential as an Allowed Use within Resort Hotels (PA2021-096)
Director's Determination, April 30, 2021
Page 2
accommodate growth to the extent identified in the Sixth Cycle Regional Housing
Needs Allocation ("RHNA"). As a result, new and flexible land use and zoning
regulations and strategies should be developed in order to reasonably and
practically accommodate this ambitious State housing mandate while protecting
the character and maintaining a quality of life that makes Newport Beach a special
place to live, work, and visit.
Council Policy K-4 directs City staff to develop, modify as necessary, and
aggressively implement various strategies and action plans that are designed to
accelerate housing production consistent with the policy, including encouraging
and incentivizing the development of mixed-use hotels. Council Policy K -4's goals
include interpreting ambiguities in the City of Newport Beach General Plan, Coastal
Land Use Plan, and Titles 20 (Planning and Zoning) and 21 (Local Coastal
Program Implementation Plan) of the Newport Beach Municipal Code ("NBMC") to
allow hotels, located outside of the Coastal Commission Appeal Jurisdiction, to
convert up to thirty percent (30%) of their approved hotel rooms into residential
units on a one -for -ane basis. Such an interpretation would allow for residential
units to be deemed an accessory use to the principal use of a hotel and find that
such residential uses are consistent with the hotel's underlying General Plan,
Coastal Land Use Plan and municipal code land use and zoning designations.
Applicable Resort Hotels
Mixed-use hotels are an established trend in the hospitality industry that
incorporate hotel -branded residential units as an accessory use located within a
resort hotel complex where residents enjoy access to the full range of services,
facilities, and amenities provided by the hotel operator or brand. These hotel -
residential uses cannot exist without the hotel's services, facilities, and amenities.
There are currently twenty-two (22) hotels in the City, of which ten (10) hotels qualify
as a resort hotel, a self-contained destination that provides for all travel
accommodation needs in one location, including but not limited to restaurants, bars,
shopping, and recreational facilities (Attachment A). Of the ten (10) resort hotels in
the City, one (1) hotel is located in the coastal zone, but completely outside the
Coastal Commission Appeal Jurisdiction area, and three (3) hotels are located
outside the coastal zone.
Table 1. Applicable Resort Hotel Properties in the City
Map
Hotel Name
Location
General Pian
Local Coastal
Zoning
ID
Program
1
Renaissance
4500 MacArthur Blvd
Mixed -Use
NIA- Outside Coastal
Koll Center Planned
Newport Beach
Horizontal
Zone
Community (PC15)
MU -H2
2
Fashion Island
690 Newport Center Dr.
MU -H3
NIA- Outside Coastal
North Newport
Hotel
Zone
Center Planned
Communi PC56
3
Hyatt Regency
4545 MacArthur Blvd.
MU -H2
NIA- Outside Coastal
Newport Place
John Wayne
Zone
Planned Community
Airport
PC11
4
Newport Beach
900 Newport Center Dr.
Visitor Serving
Commercial Visitor-
Commercial Visitor -
Marriot
Commercial
Serving (CV-B)/Visitor
Serving (CV)
(CV)
Serving Commercial
GV
21-29
Interpreting Accessory Residential as an Allowed Use within Resort Hotels (PA2021-096)
Director's Determination, April 30, 2021
Page 3
Planning and Zoning (Title 20) Interpretation
Pursuant to Section 20.12.020E (Rules of Interpretation — Unlisted Uses of Land)
of the NBMC, the Director may determine that a proposed land use that is not listed
in Part 2 of this title (Zoning Districts, Allowable Land Uses, and Zoning District
Standards) may be allowed if the following findings can be made:
Finding:
A. The characteristics of, and activities associated with, the proposed use are
equivalent to those of one or more of the uses listed in the zoning district as
allowable, and will not involve a greater level of activity, population density,
intensity, traffic generation, parking, dust, odor, noise, or similar impacts than
the uses listed in the zoning district,-
Facts
istrict,
Facts in Support of finding:
1. The allowance of residential accessory units within a hotel will be regulated
to ensure the underlying characteristics and activities remain equivalent to
the listed hotel use within the applicable CV (Commercial Visitor -Serving)
Coastal Zoning District or PC (Planned Community) Zoning District.
2. Approved hotel rooms will be allowed to convert to residential uses on a
one-for-one basis to ensure the accessory residential use does not involve
a greater level of activity, population density, traffic generation, parking,
dust, odor, noise, or similar impacts than the other uses listed within the
applicable CV (Commercial Visitor -Serving) Coastal Zoning District or PC
(Planned Community) Zoning District.
3. The conversion of hotel rooms to residential uses will be limited to no more
than 30 percent of the total number of approved hotel rooms. This restriction
will further ensure that residential uses remain an accessory use to the hotel
and do not change the primary use of the property from hotel to residential.
4. The traffic generation associated with a residential use is comparable to the
traffic generation for a resort hotel use. According to the Institute of
Transportation Engineers Trip Generation Manual (10th Edition), a Multi -
Family Housing Mid -Rise (3-10 levels) development (ITE Code 221) would
generate 0.36 and 0.44 average AM and PM weekday peak hour trips per
dwelling unit. A Resort Hotel (ITE Code 330) would generate 0.32 and 0.41
average AM and PM weekday peak hour trips per room. The published ITE
trip rates are generally for stand-alone development (e.g. stand-alone hotel
or multi -family housing buildings); however, the reality is accessory
residential dwelling units would likely have lower rates due to the additional
on-site amenities provided. Therefore, following conversion of a hotel room
to a residential unit, the anticipated traffic generation will be similar or lower.
21-30
Interpreting Accessory Residential as an Allowed Use within Resort Hotels (PA2021-096)
Director's Determination, April 30, 2021
Page 4
5. Pursuant to Council Policy K-3 and in compliance with Senate Bill 743, the
conversion of a resort hotel room to a residential unit is considered to be
less than significant impact on transportation/traffic and no further vehicle
miles traveled (VMT) analysis is required since all trips associated with such
conversion have already been accounted for as approved hotel rooms. As
a result, conversions are expected to fall below the adopted land use
screening threshold of 300 or less daily trips. For ITE Code 330, there is no
listed daily trip rate; however, the City Traffic Phasing Ordinance states that
if there is not an applicable rate, the City Traffic Engineer may, in the
exercise of his/her professional judgement, authorize the use of trip
generation rates in San Diego Association of Government's (SANDAG)
Traffic Generators or on the basis of actual site counts. The SANDAG daily
trip rate for Resort Hotel is eight daily trips per room. The SANDAG daily
trip rate for Multi -Family Condominium is also eight daily trips per unit.
Therefore, the conversion of a resort hotel room to a residential unit would
result in same or lower daily trips, and below the screening threshold of 300
daily trips requiring VMT analysis.
6. Based on the similar vehicular trips associated with accessory residential
uses, levels of odor, dust, noise, or similar impacts at a hotel property with
accessory residential uses is expected to be similar or less.
7. Mixed-use hotels are a form of accommodation that affords buyers with
access to the full range of services, facilities, and amenities provided by the
hotel.
8. The definition of hotel allows related accessory uses such as conference
rooms and meeting rooms, restaurants, bars, and recreational facilities that
can generate additional parking demand substantially higher than residential
parking rates. The conversion of hotel rooms to residential units would
constitute an amendment to the conditional use permit. In reviewing such
amendments, approval of the conditional use permit would require ensuring
adequate parking is provided to accommodate the residential units through
surplus parking, shared parking, or the adoption of a parking management
plan.
Findinq:
B. The proposed use will meet the purposelntent of the zoning district that is
applied to the location of the use;
Facts in Support of finding:
The CV (Commercial Visitor -Serving) Coastal Zoning District is intended to
provide for areas appropriate for accommodations, goods, and services
intended to primarily serve visitors to the City. Hotels are allowed in the CV
(Commercial Visitor -Serving) Coastal Zoning District subject to obtaining a
21-31
Interpreting Accessory Residential as an Allowed Use within Resort Hotels (PA2021-096)
Director's Determination, April 30, 2021
Page 5
conditional use permit pursuant to Section 20.20.020 of the NBMC. A hotel
with an accessory residential use that is limited to no more than 30 percent
of the approved hotel rooms will primarily serve visitors to the City.
2. The resort hotels located within PC11, PC15, and PC56 are located within the
MU -H (Mixed -Use Horizontal) land use category of the General Plan. The
MU -H designations are intended to provide for the development of areas for
a horizontally distributed mix of uses, which may include general or
neighborhood commercial, commercial offices, multi -family residential,
visitor -serving and marine -related uses, and/or buildings that vertically
integrate residential with commercial uses. The hotel -branded units are
consistent with the MU -H designations as residential units are clearly
allowed, and a hotel with an accessory residential use that is limited to no
more than 30 percent of the approved hotel rooms will primarily serve
visitors to the City.
3. Mixed-use hotels are common practice within the hotel industry and provide
visitor serving amenities and services consistent with the CV (Commercial
Visitor -Serving) Coastal Zoning District and PC (Planned Community)
Zoning District.
4. Fact in Support of Finding A.7 is hereby incorporated.
Finding:
C. The proposed use will be consistent with the goals, objectives, and policies of
the General Plan, or any applicable specific plan,-
Facts
lan;
Facts in Support of finding:
The CV (Commercial Visitor -Serving) Coastal Zoning District General Plan
land use designation is intended to provide for areas appropriate for
accommodations, goods, and services intended to serve primary visitors to
the City. By limiting residential uses to an accessory use at a hotel property,
the primary purpose of the hotel meets the goals, objectives and policies of
the General Plan, or any applicable specific plan.
2. The MU -H (Mixed -Use Horizontal) designations are intended to provide for
the development of areas for a horizontally distributed mix of uses, which
may include general or neighborhood commercial, commercial offices,
multi -family residential, visitor -serving and marine -related uses, and/or
buildings that vertically integrate residential with commercial uses. Mixed-
use hotels are consistent with the MU -H designations as residential units
are clearly allowed, and a hotel with an accessory residential use that is
limited to no more than 30 percent of the approved hotel rooms will primarily
serve visitors to the City.
21-32
Interpreting Accessory Residential as an Allowed Use within Resort Hotels (PA2021-096)
Director's Determination, April 30, 2021
Page 6
3. The trend in the hotel industry is to locate limited residential uses at a hotel
property to create resort amenities that can be shared by residents, visitors,
and tourists alike.
4. This interpretation implements Land Use Element Policy LU 2.3 (Range of
Residential Choices) by providing new opportunities for the development of
residential units in response to community and regional needs for housing.
5. This interpretation implements Land Use Element Policy LU 3.2 (Growth
and Change) which encourages enhancement of existing neighborhoods,
districts, and corridors, allowing for re -use and infill with uses that are
complementary in type, form, scale, and character. Changes in use and/or
density/intensity should only be considered in those areas that are
economically underperforming, are necessary to accommodate the City's
share of regional population growth, improve the relationship and reduce
commuting distance between home and jobs, or enhance the values that
distinguish Newport Beach as a special place to live for its residents. The
hotel industry has been one of the hardest hit industries due to the COVID-
19 pandemic and for some hotels, a full recovery of the industry is not
anticipated for many years. Mixed-use hotels provide an opportunity to
revitalize older and/or underperforming hotels to maintain their competitive
standing by creating multiple revenue streams that can support
improvements to the property enhancing the visitor experience. Economies
of scale created by shared facilities, amenities, and services add additional
benefit to mixed-use hotel developments. This cross pollination of business
benefits both the hotel and the resident. It may also increase occupancy
rates at the resort by creating increased synergy between uses and social
gathering opportunities, boosting transient occupancy taxes while providing
in -fill housing opportunities to partially assist the City in meeting its RHNA
obligation in highly desirable and built -out areas.
Finding:
D. The proposed use is not listed as allowable in another zoning district,
Fact in Support of finding:
Hotels with an accessory residential use are not listed as allowable in
another zoning district, Stand-alone residential uses, which are allowable in
another zoning district, would not be permitted under this interpretation.
Finding:
E. The proposed use is not a prohibited or illegal use.
21-33
Interpreting Accessory Residential as an Allowed Use within Resort Hotels (PA2021-096)
Director's Determination, April 30, 2021
Page 7
Fact in Support of finding:
Hotels with an accessory residential use are neither a prohibited or an illegal
use.
Local Coastal Program Implementation Plan (Title 21) Interpretation
Pursuant to NBMC Section 21.12.020(E) (Rules of Interpretation — Unlisted Uses
of Land) of the NBMC, the Director may determine that a proposed land use that
is not listed in Part 2 of this title (Coastal Zoning Districts, Allowable Land Uses,
and Coastal Zoning District Standards) may be allowed if the following findings can
be made:
Finding:
F. The characteristics of, and activities associated with, the proposed use are
equivalent to those of one or more of the uses listed in the coastal zoning district
as allowable, and will not involve a greater level of activity, population density,
intensity, traffic generation, parking, dust, odor, noise, or similar impacts than
the uses listed in the coastal zoning district;
Facts in Support of finding:
The allowance of residential accessory units within a hotel will be regulated
to ensure the underlying characteristics and activities remain equivalent to
the listed hotel use within the applicable CV (Commercial Visitor -Serving)
Coastal Zoning District.
2. Approved hotel rooms will be allowed to convert to residential uses on a
one-for-one basis to ensure the accessory residential use does not involve
a greater level of activity, population density, traffic generation, parking,
dust, odor, noise, or similar impacts than the other uses listed within the
applicable CV (Commercial Visitor -Serving) Coastal Zoning District.
3. The conversion of hotel room to residential units would constitute a major
change in hotel operations requiring a coastal development permit. The
coastal development permit review will require adequate parking be provided
to accommodate the residential units through surplus parking, shared parking,
or the adoption of a parking management plan, and to ensure the protection
of lower -coast visitor accommodations.
4. Facts in Support of Finding A.3 through A.8 are hereby incorporated by
reference.
21-34
Interpreting Accessory Residential as an Allowed Use within Resort Hotels (PA2021-096)
Director's Determination, April 30, 2021
Page 8
Finding:
G. The proposed use will meet the purpose/intent of the coastal zoning district that
is applied to the location of the use;
Facts in Support of finding:
The CV (Commercial Visitor -Serving) Zoning District is intended to provide
for areas appropriate for accommodations, goods, and services intended to
primarily serve visitors to the City. A hotel with an accessory residential use
that is limited to no more than 30 percent of the approved hotel rooms will
primarily serve visitors to the City.
2. Mixed-use hotels are common practice within the hotel industry and provide
visitor serving amenities and services consistent with the CV (Commercial
Visitor -Serving) Coastal Zoning District.
Finding:
H. The proposed use will be consistent with the goals, objectives, and policies of
the Coastal Land Use Plan;
Facts in Support of finding:
The CV (Commercial Visitor -Serving) Coastal Zoning District Coastal Land
Use Plan designation is intended to provide for areas appropriate for
accommodations, goods, and services intended to serve primary visitors to
the City. By limiting residential uses to an accessory use at a hotel property,
the primary purpose of the hotel meets the goals, objectives and policies of
the Coastal Land Use Plan that prioritize visitor -serving commercial
recreational facilities designed to enhance public opportunities for coastal
recreation over other uses.
2. The trend in the hotel industry is to locate limited residential uses at a hotel
property to create resort amenities that can be shared by residents, visitors,
and tourists alike.
3. This interpretation would restrict its applicability to hotel properties located
outside of the appeal areas identified in the California Public Resources
code Section 30603(a) as generally depicted on the Post-LCP Certification
Permit and Appeal Jurisdiction Map. This applicability restriction ensures
that coastal access and coastal dependent uses are not impacted.
4. Any development would be required to adhere to all LCP goals and policies
including those related to public access and resource protection, and the
protection of lower-cost visitor accommodations.
21-35
Interpreting Accessory Residential as an Allowed Use within Resort Hotels (PA2021-096)
Director's Determination, April 30, 2021
Page 9
Finding:
1. The proposed use is not listed as allowable in another coastal zoning district;
and
Fact in Support of finding:
1. Hotels with an accessory residential use are not listed as allowable in
another coastal zoning district. Separate or stand-alone residential uses
operating as primary land uses, which are allowable in another coastal
zoning district, would not be permitted under this interpretation.
Finding:
J. The proposed use is not a prohibited or illegal use.
Fact in Support of finding:
1. Hotels with an accessory residential use are neither a prohibited or an illegal
use.
Directors Determination
The Community Development Director of the City of Newport Beach hereby
determines that residential uses are permitted as an accessory use to hotels subject
to the following:
a. This interpretation shall only apply to resort hotels, a self-contained
destination that provides for all travel accommodation needs in one location,
including but not limited to restaurants, bars, shopping, and recreational
facilities. Residents shall enjoy access to the full range of services,
facilities, and amenities provided by the hotel operator or brand.
b. The hotel property relying upon this interpretation shall be located outside the
appeal area identified in California Public Resources Code Section 30603(a)
as generally depicted on the Post-LCP Certification Permit and Appeal
Jurisdiction Map.
C. Approved hotel rooms may be converted to residential units but only on a
one-for-one basis.
d. The residential use shall at all times be accessory to the hotel use, and the
residential units shall comprise no more than 30 percent of the approved
hotel rooms.
e. The residential units may be located within a repurposed hotel or in a new
residential structure.
21-36
Interpreting Accessory Residential as an Allowed Use within Resort Hotels (PA2021-096)
Director's Determination, April 30, 2021
Page 10
A property owner that desires to have an accessory residential use at their
hotel shall process a conditional use permit and coastal development permit
(if applicable). In reviewing said permits, the review authority shall ensure
adequate parking is provided to accommodate the residential units through
surplus parking, shared parking, or the adoption of a parking management
plan.
Potential impacts to public access, affordable housing, and the loss of
transient occupancy tax must be mitigated by entering into a Development
Agreement with the City or by some other means deemed appropriate.
Please note that a call for review or appeal may be filed within 14 days following
the date of this determination.
5eimone Jurjis, P CB
Community Deve pment Director
Attachments:
A — Hotel Map and List
21-37
ATTACHMENT A
Hotel Map and List
21-38
L4
.A
Lur Appeal Area
Coastal Zone Boundary
City Boundary
J12
v
------
----
----------- -- -11
-
--- ------------- j
J
Eligible hotels; resort qualities and located outside Coastal Commission Appeal Area
Non -eligible hotels; nor -resort or located in Coastal Commission Appeal Area
3,450 6,4O'0
FX'
Qualifying Resort Hotels
Determination No. DD2021-001 (PA2021-096)
21-39
RE W PORT BEACH
City of Newport Beach
GIS DiAden
AP,A 23,202,
21-39
Tag
Name of Establishment
Address
GP
Zoning
Coastal land
Use and Zoning
Appeal Area
Resort Qualities
Eligible for
Interpretation
Non -Appeal Area
Resort Qualities
1
Renaissance Newport Beach
4500 MacArthur Blvd
MU -H2
PC -15 (Office Site A)
--
-
Yes
Yes
2
Fashion Island Hotel
690 Newport Center Drive
MU -H3
PC -56
Yes
Yes
3
Hatt Regency John Wayne Airport
4545 MacArthur Blvd
MU -1-12
PCll (Hotel Site 11
Yes
Yes
4
Newport Beach Marriot
900 Newport Center Dr
CV
Cv
CV-B/CV
No
Yes
Yes
5
Lido House
3300 Newport Boulevard
CV -LV
CV -LV
CV -LV
Bisected
Yes
No
6
Newport Dunes
1131 Back Bay Drive
PR
PC48
PR/PC48
Yes
No
No
7Balboa
Bay Resort
1221 West Coast Highway
CV
PC45 (Resort)
CV-B/PC45
Yes
Yes
No
B
Newport Beach Marriot Bayview
SOD Bayview Circle
CV
PC32
CV-A/PC-32
Bisected
Yes
No
9
The Resort at Pelican Hill
22701 Pelican Hill Rd
CV
PC52 (PA13C-
Tourist Commercial)
PC52
Bisected
Yes
No
10
Hyatt Regency Newport Beach
1107 Jamboree Rd
Cv
Cv
CV-B/CV
Bisected
Yes
No
11
Balboa Inn
105 Main St.
CV
CV
CV-B/CV
Yes
Yes
No
12
Bay Shores Peninsula Hotel
1800 West Balboa Blvd.
CV
CV
CV-A/CV
Yes
No
No
13
Little Inn By The Bay
2627 Newport Blvd.
CV
CV
CV-A/CV
Bisected
No
No
14
Newport Channel Inn
6100 West Coast Hi hway
CV
CV
CV-A/CV
No
No
No
15
Hotel Solarena
6208 West Coast Highway
Cv
Cv
CV-A/CV
No
No
No
16
Holiday Inn Express
2300 West Coast Highway
CV
CV
CV-A/CV
Bisected.
No
No
17
Pine Knot
6302 West Coast Highway
Cv
CV
CV-A/CV
No
No
No
18
Marriot's Newport Coast Villas
23000 Newport Coast Dr
Cv
PC52 (PA13C-
Tourist Commercial)
PC52
Bisected
No
No
19
Doryman's Inn
2102 West Ocean Front
Cv
Cv
Cv-B/Cv
Yes
No
No
20
Crystal Cove Beach Cottages
35 Crystal Cove
05
PC52 (PA17j
PC52 (PA17(
Yes
No
No
21
Extended Stay America OCJohn Wayne Airport
4881 Birch Street
CG
PC15 {Retail and
Service Site 1
_
_
No
No
22
The Newport Beach Hotel A Four Sisters Inn
2306 W Oceanfront
CV
CV
CV-8/CV
Yes
No
No
21-40
ATTACHMENT B
Council Policy K-4
21-41
Reducing the Barriers to the Creation of Housing
Background
LIMA!
The State of California has declared that the lack of housing is a critical problem that
threatens the economic, environmental, and social quality of life in California. The
consequences of the housing crisis include the lack of housing to support employment
growth, imbalance in jobs and housing, reduced mobility, urban sprawl, excessive
commutes, and air quality deterioration. While the causes of this crisis are multiple and
complex, the State attributes the underlying cause to insufficient housing supply.
On October 15, 2019, the California Department of Housing and Community
Development (HCD) issued a Regional Housing Needs Assessment (RHNA) for the
Southern California Association of Governments (SCAG) region of 1,341,827 units that
each jurisdiction within the region must plan for in the 2021-2029 Planning Permit (Sixth
Cycle). As required under State law, SCAG developed a RHNA Allocation Methodology
to reallocate the regional determination to each of the 197 jurisdictions in the region,
including Newport Beach.
The City of Newport Beach worked diligently for many months in partnership with other
member jurisdictions and stakeholders throughout the RHNA Allocation Methodology
development process to provide comments and recommendations to achieve a RHNA
allocation that is fair, equitable and in consideration of the unique circumstances and local
planning factors inherent in our community. Despite this process and a City -initiated
RHNA appeal, the final adopted RHNA methodology resulted in an allocation of 4,845
units for the City.
The City has successfully obtained and maintained HCD certification of its Housing
Element for both the Fourth Cycle (2008-2014) Planning Period with a RHNA Allocation
of 1,769 units and the Fifth Cycle (2014-2021) Planning Period with a RHNA Allocation
of 5 units. Despite a low Fifth Cycle RHNA Allocation, the City maintained its commitment
to housing programs intended to reduce the barriers to the development of affordable
housing, including preserving the Residential Overlay within the Newport Place Planned
Community. During the first six years of the Fifth Cycle Planning Period, the City has
permitted over 1,768 new units, including 95 lower income units. In addition, the City has
approved entitlements for housing development projects totaling another 662 multi -unit
residential units in the Airport Area, including 13 very low- and 78 low-income units. The
Newport Airport Village Planned Community was also adopted creating the opportunity
for another 444 residential units that would include a minimum affordable housing
component consisting of at least 5 percent very low-income units or 10 percent low
income units. Lastly, the City has committed approximately $2 million to fund the
21-42
acquisition and rehabilitation of the Cove permanent supportive housing project a 12 -unit
apartment complex for homeless veterans and low-income seniors that opened in 2018.
Despite an immensely difficult -to -attain Sixth Cycle RHNA Allocation, the City remains
committed to addressing the housing crisis by developing a timely and compliant Housing
Element and continuing to support the production of housing for all income levels.
Policy
Recognizing that the City has several major constraints on existing lands that severely
limit or totally restrict the City's ability to accommodate growth to the extent identified in
the Sixth Cycle RHNA Allocation, it shall be the policy of the City Council to consider new
and flexible land use and zoning regulations and strategies in order to reasonably and
practically accommodate this ambitious State housing mandate while protecting the
character and maintaining a quality of life that makes Newport Beach a special place to
live, work, and visit.
The City Council therefore directs City staff and the Newport Beach Planning Commission
to develop, modify as necessary, and aggressively implement strategies and action plans
that are designed to accelerate housing production consistent with this policy as
described in the following sections:
Production of Accessory Dwelling Units
The Legislature approved, and the Governor signed SB 13 (Chapter 653, Statutes of
2019), AB 68 (Chapter 655, Statutes of 2019), and AB 881 (Chapter 659, Statutes of
2019) into law that, among other things, amended Government Code sections 65852.2
and 65852.22 to further impose new limits on the City's ability to regulate ADUs and Junior
Accessory Dwelling Units (JADUs). The Legislature's intent was to reduce regulatory
barriers and costs, streamline the approval process, and expand the potential capacity
for ADUs.
Although the City has revised its ADU regulations to comply with the minimum
requirements of State law, further encouraging the development ADUs is an important
strategy to accommodate future growth in combination with other strategies to meet the
RHNA Allocation. HCD allows ADUs to meet a portion of the City's RHNA based on trends
in past production and more aggressive production estimates based on the adoption of
production programs. Encouraging ADUs allows for the dispersing of density throughout
the City and avoids the need for excessive rezoning and high infrastructure costs
associated with new high-density developments. Because ADUs tend to be relatively
small with modest amenities, they provide more affordable housing options for select
groups, such as students, seniors, caretakers, and people with disabilities.
Therefore, to further encourage and incentivize the development of ADUs, the City should
pursue the following:
21-43
1. Interpret ambiguities in code provisions regulating ADUs in a manner that
accommodates and maximizes production.
2. Direct staff and the Planning Commission to review and recommend code changes
that reduce regulatory barriers, streamline the approval process, and expand
potential capacity of ADUs beyond minimum State law requirements.
3. Publicize incentives for construction of ADUs with a systematic approach utilizing
all forms of media and outreach.
4. Prepare and maintain a user-friendly website committed to information related to
codes, processes, and incentives pertaining to the development of ADUs and
JADUs in the City.
5. Develop and administer a program that includes waiving all permit and City fees
for property owners of unpermitted units when they agree to bring units into
compliance with current building and fire codes to ensure the safety of occupants
and structures.
6. Develop permit -ready standard plans to permit new ADU construction to minimize
design costs, expedite permit processing, and provide development certainty for
property owners.
Planninq Commission Review and Recommendations for Mixed -Use Designations
As part of the 2006 Comprehensive General Plan Update and 2010 Zoning Code Update,
new mixed-use housing opportunity zones were created throughout the City as a strategy
to enhance and revitalize underperforming and underutilized properties. These areas
included the Airport Area, Dover/Westcliff, Newport Center, Mariners Mile, and portions
of the Balboa Peninsula. The Airport Area and Newport Center have proven the most
successful with several approved and constructed mixed-use developments, such as
Uptown Newport and Villas Fashion Island. The Balboa Peninsula has had some limited
success while Dover/Westcliff and Mariners' Mile have not proven successful to -date.
Despite the housing opportunity that has been created on several properties in these
areas, a majority of these sites remain underutilized with a single, non-residential use,
such as retail or office. It is evident the City's existing development standards (e.g.,
setbacks, height, density, parking, dedications, etc.) related to mixed-use development
may create constraints to the redevelopment of these properties. Therefore, to ensure
that mixed-use opportunities envisioned by the 2006 General Plan redevelop to their full
potential, the City should pursue the following:
1. Direct staff and the Planning Commission to review annually the established
mixed-use zones in the City and recommend code changes or policy ideas to the
City Council that reduce regulatory barriers and incentivize mixed-use residential
development.
21-44
Mixed -Use Resort Opportunities
Mixed-use resorts are an established trend in the hospitality industry that incorporate
hotel -branded residential units as an accessory use located within a resort hotel complex
where residents enjoy access to the full range of services, facilities, and amenities
provided by the hotel operator or brand. The residential use cannot exist without the
hotel's services, facilities, and amenities.
The hotel industry has been one of the hardest hit industries due to the COVID-19
pandemic and a full recovery of the industry is not anticipated for many years. Mixed-use
resorts provide an opportunity to revitalize older or underperforming hotels and maintain
their competitive standing by creating multiple revenue streams.
Economies of scale created by shared facilities, amenities, and services add additional
benefit to mixed-use resort developments. This cross pollination of business benefits both
the hotel and the resident. It may also increase occupancy rates at the resort by creating
increased synergy between uses and social gathering opportunities, boosting transient
occupancy taxes while providing in -fill housing opportunities to partially assist the City in
meeting its RHNA obligation in highly desirable and built -out areas. Incorporating
residences also helps to off -set cyclical variations in hotel occupancy rates that can, for
instance, result in seasonal decreases in revenue for the hotel's food and beverage
offerings.
Therefore, to further encourage and incentivize the development of mixed-use hotels, the
City should pursue the following:
1. Issue interpretations that interpret ambiguities in General Plan, Zoning Code,
and/or Local Coastal Plan Program provisions to allow hotels and motels, located
outside of the Coastal Commission Appeal Areas, to convert up to thirty percent
(30%) of their permitted hotel and motel rooms into residential units on a one-for-
one basis. Such interpretation would allow for residential units to be deemed an
accessory use to the principal use of a hotel and find that such residential uses are
consistent with the hotel's and motel's underlying General Plan, Zoning Code, and
Local Coastal Plan Program land use and zoning designations.
2. The residential units may be allowed in repurposed hotel and motel rooms and/or
in new residential structures, subject to the City's project approval process (e.g.,
Site Development Review) and including, as appropriate, review under the
California Environmental Quality Act.
3. Consider establishing parking programs (e.g., shared parking) and/or reduced
residential parking requirements that mitigate the need for any additional parking
due to the conversion to residential use.
4. Consider fiscal impact analysis to disclose and mitigate any reduction in transient
occupancy tax due to the conversion.
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5. Consider increasing the flexibility in use of transfer of development rights to allow
for transfer of unbuilt residential units to hotel sites.
6. Require property owners converting permitted hotel and motel rooms into
residential units to mitigate impacts as a result of the conversion including, but not
limited to, creating affordable housing units either in the project itself or through a
contribution of in -lieu fees.
Adopted K-4 — 03-09-2021
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ATTACHMENT C
Director's
Determination No.
DD2021-01
21-47
CITY OF NEWPORT BEACH
COMMUNITY DEVELOPMENT DEPARTMENT
100 Civic Center Drive
Newport Beach, California 92660
949 644-3200
newportbeachca.gov/communitydevelopment
Director's Determination
To: Planning Division, Community Development Department
From: Seimone Jurjis, Community Development Director
Date: April 30, 2021
Re: Director's Determination No. DD2021-01 Interpreting Accessory
Residential as an Allowed Use within Resort Hotels (PA2021-096)
Title 20 (Planning and Zoning) and Title 21 (Local Coastal Program Implementation
Plan) of the Newport Beach Municipal Code ("NBMC") define "hotel" as an
establishment that provides guest rooms or suites for a fee to transient guests for
sleeping purposes. Access to units is primarily from interior lobbies, courts, or halls.
Related accessory uses may include conference rooms and meeting rooms,
restaurants, bars, and recreational facilities. Guest rooms may or may not contain
kitchen facilities for food preparation. Hotels with kitchen facilities are commonly
known as extended stay hotels. A hotel operates subject to taxation under California
Revenue and Taxation Code Section 7280.
Neither Title 20 (Planning and Zoning) nor Title 21 (Local Coastal Program
Implementation Plan) list residential uses as part of the definition of "hotel". Both Title
20 and Title 21 definitions of "hotel" are out of date and do not reflect current industry
practice. Specifically, the definition of "hotel" has not been updated to designate
residential uses as an accessory use, which has become common practice for
destination resort hotels (mixed-use hotels). While the definition of a hotel does not
prohibit residential uses, a Director's Determination is necessary to fill the gap
between contemporary practice and the exact wording of Title 20 and Title 21.
Sections 20.12.020 and 21.12.020 (Rules of Interpretation) of the NBMC authorize
the Community Development Director to interpret the meaning of provisions of the
Zoning Code and Local Coastal Program Implementation Plan.
Background
Council Policy K-4 (Reducing the Barriers to the Creation of Housing)
At the March 9, 2021 City Council meeting, the City Council adopted Resolution No.
2021-18 adding City Council Policy K-4 (Reducing the Barriers to the Creation of
Housing). Council Policy K-4 recognizes that the City has several major constraints
Community Development Department
on existing lands that severely limit or totally restrict the City's ability to
accommodate growth to the extent identified in the Sixth Cycle Regional Housing
Needs Allocation ("RHNA"). As a result, new and flexible land use and zoning
regulations and strategies should be developed in order to reasonably and
practically accommodate this ambitious State housing mandate while protecting
the character and maintaining a quality of life that makes Newport Beach a special
place to live, work, and visit.
Council Policy K-4 directs City staff to develop, modify as necessary, and
aggressively implement various strategies and action plans that are designed to
accelerate housing production consistent with the policy, including encouraging
and incentivizing the development of mixed-use hotels. Council Policy K -4's goals
include interpreting ambiguities in the City of Newport Beach General Plan, Coastal
Land Use Plan, and Titles 20 (Planning and Zoning) and 21 (Local Coastal
Program Implementation Plan) of the Newport Beach Municipal Code ("NBMC") to
allow hotels, located outside of the Coastal Commission Appeal Jurisdiction, to
convert up to thirty percent (30%) of their approved hotel rooms into residential
units on a one-for-one basis. Such an interpretation would allow for residential
units to be deemed an accessory use to the principal use of a hotel and find that
such residential uses are consistent with the hotel's underlying General Plan,
Coastal Land Use Plan and municipal code land use and zoning designations.
Applicable Resort Hotels
Mixed-use hotels are an established trend in the hospitality industry that
incorporate hotel -branded residential units as an accessory use located within a
resort hotel complex where residents enjoy access to the full range of services,
facilities, and amenities provided by the hotel operator or brand. These hotel -
residential uses cannot exist without the hotel's services, facilities, and amenities.
There are currently twenty-two (22) hotels in the City, of which ten (10) hotels qualify
as a resort hotel, a self-contained destination that provides for all travel
accommodation needs in one location, including but not limited to restaurants, bars,
shopping, and recreational facilities (Attachment A). Of the ten (10) resort hotels in
the City, one (1) hotel is located in the coastal zone, but completely outside the
Coastal Commission Appeal Jurisdiction area, and three (3) hotels are located
outside the coastal zone.
Table 1. Applicable Resort Hotel Properties in the City
Map
Hotel Name
Location
General Plan
Local Coastal
Zoning
ID
Program
1
Renaissance
4500 MacArthur Blvd.
Mixed -Use
N/A- Outside Coastal
Koll Center Planned
Newport Beach
Horizontal
Zone
Community (PC15)
MU -H2
2
Fashion Island
690 Newport Center Dr.
MU -H3
N/A- Outside Coastal
North Newport
Hotel
Zone
Center Planned
Community PC56
3
Hyatt Regency
4545 MacArthur Blvd.
MU -H2
N/A- Outside Coastal
Newport Place
John Wayne
Zone
Planned Community
Airport
PC11
4
Newport Beach
900 Newport Center Dr.
Visitor Serving
Commercial Visitor-
Commercial Visitor -
Marriot
Commercial
Serving (CV -B) /Visitor
Serving (CV)
(CV)
Serving Commercial
CV
2
21-49
Planning and Zoning (Title 20) Interpretation
Pursuant to Section 20.12.020E (Rules of Interpretation — Unlisted Uses of Land)
of the NBMC, the Director may determine that a proposed land use that is not listed
in Part 2 of this title (Zoning Districts, Allowable Land Uses, and Zoning District
Standards) may be allowed if the following findings can be made:
Finding:
A. The characteristics of, and activities associated with, the proposed use are
equivalent to those of one or more of the uses listed in the zoning district as
allowable, and will not involve a greater level of activity, population density,
intensity, traffic generation, parking, dust, odor, noise, or similar impacts than
the uses listed in the zoning district,
Facts in Support of finding:
1. The allowance of residential accessory units within a hotel will be regulated
to ensure the underlying characteristics and activities remain equivalent to
the listed hotel use within the applicable CV (Commercial Visitor -Serving)
Coastal Zoning District or PC (Planned Community) Zoning District.
2. Approved hotel rooms will be allowed to convert to residential uses on a
one-for-one basis to ensure the accessory residential use does not involve
a greater level of activity, population density, traffic generation, parking,
dust, odor, noise, or similar impacts than the other uses listed within the
applicable CV (Commercial Visitor -Serving) Coastal Zoning District or PC
(Planned Community) Zoning District.
3. The conversion of hotel rooms to residential uses will be limited to no more
than 30 percent of the total number of approved hotel rooms. This restriction
will further ensure that residential uses remain an accessory use to the hotel
and do not change the primary use of the property from hotel to residential.
4. The traffic generation associated with a residential use is comparable to the
traffic generation for a resort hotel use. According to the Institute of
Transportation Engineers Trip Generation Manual (10th Edition), a Multi -
Family Housing Mid -Rise (3-10 levels) development (ITE Code 221) would
generate 0.36 and 0.44 average AM and PM weekday peak hour trips per
dwelling unit. A Resort Hotel (ITE Code 330) would generate 0.32 and 0.41
average AM and PM weekday peak hour trips per room. The published ITE
trip rates are generally for stand-alone development (e.g. stand-alone hotel
or multi -family housing buildings); however, the reality is accessory
residential dwelling units would likely have lower rates due to the additional
on-site amenities provided. Therefore, following conversion of a hotel room
to a residential unit, the anticipated traffic generation will be similar or lower.
3
21-50
5. Pursuant to Council Policy K-3 and in compliance with Senate Bill 743, the
conversion of a resort hotel room to a residential unit is considered to be
less than significant impact on transportation/traffic and no further vehicle
miles traveled (VMT) analysis is required since all trips associated with such
conversion have already been accounted for as approved hotel rooms. As
a result, conversions are expected to fall below the adopted land use
screening threshold of 300 or less daily trips. For ITE Code 330, there is no
listed daily trip rate; however, the City Traffic Phasing Ordinance states that
if there is not an applicable rate, the City Traffic Engineer may, in the
exercise of his/her professional judgement, authorize the use of trip
generation rates in San Diego Association of Government's (SANDAG)
Traffic Generators or on the basis of actual site counts. The SANDAG daily
trip rate for Resort Hotel is eight daily trips per room. The SANDAG daily
trip rate for Multi -Family Condominium is also eight daily trips per unit.
Therefore, the conversion of a resort hotel room to a residential unit would
result in same or lower daily trips, and below the screening threshold of 300
daily trips requiring VMT analysis.
6. Based on the similar vehicular trips associated with accessory residential
uses, levels of odor, dust, noise, or similar impacts at a hotel property with
accessory residential uses is expected to be similar or less.
7. Mixed-use hotels are a form of accommodation that affords buyers with
access to the full range of services, facilities, and amenities provided by the
hotel.
8. The definition of hotel allows related accessory uses such as conference
rooms and meeting rooms, restaurants, bars, and recreational facilities that
can generate additional parking demand substantially higher than residential
parking rates. The conversion of hotel rooms to residential units would
constitute an amendment to the conditional use permit. In reviewing such
amendments, approval of the conditional use permit would require ensuring
adequate parking is provided to accommodate the residential units through
surplus parking, shared parking, or the adoption of a parking management
plan.
Finding:
B. The proposed use will meet the purpose/intent of the zoning district that is
applied to the location of the use;
Facts in Support of finding:
The CV (Commercial Visitor -Serving) Coastal Zoning District is intended to
provide for areas appropriate for accommodations, goods, and services
intended to primarily serve visitors to the City. Hotels are allowed in the CV
(Commercial Visitor -Serving) Coastal Zoning District subject to obtaining a
conditional use permit pursuant to Section 20.20.020 of the NBMC. A hotel
4
21-51
with an accessory residential use that is limited to no more than 30 percent
of the approved hotel rooms will primarily serve visitors to the City.
2. The resort hotels located within PC11, PC15, and PC56 are located within the
MU -H (Mixed -Use Horizontal) land use category of the General Plan. The
MU -H designations are intended to provide for the development of areas for
a horizontally distributed mix of uses, which may include general or
neighborhood commercial, commercial offices, multi -family residential,
visitor -serving and marine -related uses, and/or buildings that vertically
integrate residential with commercial uses. The hotel -branded units are
consistent with the MU -H designations as residential units are clearly
allowed, and a hotel with an accessory residential use that is limited to no
more than 30 percent of the approved hotel rooms will primarily serve
visitors to the City.
3. Mixed-use hotels are common practice within the hotel industry and provide
visitor serving amenities and services consistent with the CV (Commercial
Visitor -Serving) Coastal Zoning District and PC (Planned Community)
Zoning District.
4. Fact in Support of Finding A.7 is hereby incorporated.
Finding:
C. The proposed use will be consistent with the goals, objectives, and policies of
the General Plan, or any applicable specific plan;
Facts in Support of finding_
1. The CV (Commercial Visitor -Serving) Coastal Zoning District General Plan
land use designation is intended to provide for areas appropriate for
accommodations, goods, and services intended to serve primary visitors to
the City. By limiting residential uses to an accessory use at a hotel property,
the primary purpose of the hotel meets the goals, objectives and policies of
the General Plan, or any applicable specific plan.
2. The MU -H (Mixed -Use Horizontal) designations are intended to provide for
the development of areas for a horizontally distributed mix of uses, which
may include general or neighborhood commercial, commercial offices,
multi -family residential, visitor -serving and marine -related uses, and/or
buildings that vertically integrate residential with commercial uses. Mixed-
use hotels are consistent with the MU -H designations as residential units
are clearly allowed, and a hotel with an accessory residential use that is
limited to no more than 30 percent of the approved hotel rooms will primarily
serve visitors to the City.
3. The trend in the hotel industry is to locate limited residential uses at a hotel
property to create resort amenities that can be shared by residents, visitors,
and tourists alike.
5
21-52
4. This interpretation implements Land Use Element Policy LU 2.3 (Range of
Residential Choices) by providing new opportunities for the development of
residential units in response to community and regional needs for housing.
5. This interpretation implements Land Use Element Policy LU 3.2 (Growth
and Change) which encourages enhancement of existing neighborhoods,
districts, and corridors, allowing for re -use and infill with uses that are
complementary in type, form, scale, and character. Changes in use and/or
density/intensity should only be considered in those areas that are
economically underperforming, are necessary to accommodate the City's
share of regional population growth, improve the relationship and reduce
commuting distance between home and jobs, or enhance the values that
distinguish Newport Beach as a special place to live for its residents. The
hotel industry has been one of the hardest hit industries due to the COVID-
19 pandemic and for some hotels, a full recovery of the industry is not
anticipated for many years. Mixed-use hotels provide an opportunity to
revitalize older and/or underperforming hotels to maintain their competitive
standing by creating multiple revenue streams that can support
improvements to the property enhancing the visitor experience. Economies
of scale created by shared facilities, amenities, and services add additional
benefit to mixed-use hotel developments. This cross pollination of business
benefits both the hotel and the resident. It may also increase occupancy
rates at the resort by creating increased synergy between uses and social
gathering opportunities, boosting transient occupancy taxes while providing
in -fill housing opportunities to partially assist the City in meeting its RHNA
obligation in highly desirable and built -out areas.
Finding:
D. The proposed use is not listed as allowable in another zoning district,-
Fact
istrict,
Fact in Support of finding:
Hotels with an accessory residential use are not listed as allowable in
another zoning district, Stand-alone residential uses, which are allowable in
another zoning district, would not be permitted under this interpretation.
Finding:
E. The proposed use is not a prohibited or illegal use.
Fact in Support of finding:
Hotels with an accessory residential use are neither a prohibited or an illegal
use.
Ce
21-53
Local Coastal Program Implementation Plan (Title 21) Interpretation
Pursuant to NBMC Section 21.12.020(E) (Rules of Interpretation — Unlisted Uses
of Land) of the NBMC, the Director may determine that a proposed land use that
is not listed in Part 2 of this title (Coastal Zoning Districts, Allowable Land Uses,
and Coastal Zoning District Standards) may be allowed if the following findings can
be made:
Finding:
A. The characteristics of, and activities associated with, the proposed use are
equivalent to those of one or more of the uses listed in the coastal zoning district
as allowable, and will not involve a greater level of activity, population density,
intensity, traffic generation, parking, dust, odor, noise, or similar impacts than
the uses listed in the coastal zoning district;
Facts in Support of finding:
1. The allowance of residential accessory units within a hotel will be regulated
to ensure the underlying characteristics and activities remain equivalent to
the listed hotel use within the applicable CV (Commercial Visitor -Serving)
Coastal Zoning District.
2. Approved hotel rooms will be allowed to convert to residential uses on a
one-for-one basis to ensure the accessory residential use does not involve
a greater level of activity, population density, traffic generation, parking,
dust, odor, noise, or similar impacts than the other uses listed within the
applicable CV (Commercial Visitor -Serving) Coastal Zoning District.
3. The conversion of hotel room to residential units would constitute a major
change in hotel operations requiring a coastal development permit. The
coastal development permit review will require adequate parking be provided
to accommodate the residential units through surplus parking, shared parking,
or the adoption of a parking management plan, and to ensure the protection
of lower -coast visitor accommodations.
4. Facts in Support of Finding A.3 through A.8 are hereby incorporated by
reference.
Finding:
B. The proposed use will meet the purpose/intent of the coastal zoning district that
is applied to the location of the use;
Facts in Support of finding:
The CV (Commercial Visitor -Serving) Zoning District is intended to provide
for areas appropriate for accommodations, goods, and services intended to
7
21-54
primarily serve visitors to the City. A hotel with an accessory residential use
that is limited to no more than 30 percent of the approved hotel rooms will
primarily serve visitors to the City.
2. Mixed-use hotels are common practice within the hotel industry and provide
visitor serving amenities and services consistent with the CV (Commercial
Visitor -Serving) Coastal Zoning District.
Finding:
C. The proposed use will be consistent with the goals, objectives, and policies of
the Coastal Land Use Plan;
Facts in Support of finding:
1. The CV (Commercial Visitor -Serving) Coastal Zoning District Coastal Land
Use Plan designation is intended to provide for areas appropriate for
accommodations, goods, and services intended to serve primary visitors to
the City. By limiting residential uses to an accessory use at a hotel property,
the primary purpose of the hotel meets the goals, objectives and policies of
the Coastal Land Use Plan that prioritize visitor -serving commercial
recreational facilities designed to enhance public opportunities for coastal
recreation over other uses.
2. The trend in the hotel industry is to locate limited residential uses at a hotel
property to create resort amenities that can be shared by residents, visitors,
and tourists alike.
3. This interpretation would restrict its applicability to hotel properties located
outside of the appeal areas identified in the California Public Resources
code Section 30603(a) as generally depicted on the Post-LCP Certification
Permit and Appeal Jurisdiction Map. This applicability restriction ensures
that coastal access and coastal dependent uses are not impacted.
4. Any development would be required to adhere to all LCP goals and policies
including those related to public access and resource protection, and the
protection of lower-cost visitor accommodations.
Finding:
D. The proposed use is not listed as allowable in another coastal zoning district;
and
Fact in Support of finding:
1. Hotels with an accessory residential use are not listed as allowable in
another coastal zoning district. Separate or stand-alone residential uses
operating as primary land uses, which are allowable in another coastal
zoning district, would not be permitted under this interpretation.
1.1
21-55
Finding:
E. The proposed use is not a prohibited or illegal use.
Fact in Support of finding:
1. Hotels with an accessory residential use are neither a prohibited or an illegal
use.
Directors Determination
The Community Development Director of the City of Newport Beach hereby
determines that residential uses are permitted as an accessory use to hotels subject
to the following:
a. This interpretation shall only apply to resort hotels, a self-contained
destination that provides for all travel accommodation needs in one location,
including but not limited to restaurants, bars, shopping, and recreational
facilities. Residents shall enjoy access to the full range of services,
facilities, and amenities provided by the hotel operator or brand.
b. The hotel property relying upon this interpretation shall be located outside the
appeal area identified in California Public Resources Code Section 30603(a)
as generally depicted on the Post-LCP Certification Permit and Appeal
Jurisdiction Map.
C. Approved hotel rooms may be converted to residential units but only on a
one-for-one basis.
d. The residential use shall at all times be accessory to the hotel use, and the
residential units shall comprise no more than 30 percent of the approved
hotel rooms.
e. The residential units may be located within a repurposed hotel or in a new
residential structure.
f. A property owner that desires to have an accessory residential use at their
hotel shall process a conditional use permit and coastal development permit
(if applicable). In reviewing said permits, the review authority shall ensure
adequate parking is provided to accommodate the residential units through
surplus parking, shared parking, or the adoption of a parking management
plan.
g. Potential impacts to public access, affordable housing, and the loss of
transient occupancy tax must be mitigated by entering into a Development
Agreement with the City or by some other means deemed appropriate.
N
21-56
Please note that a call for review or appeal may be filed within 14 days following
the date of this determination.
Seimone Jurjis, P CB
Community Devel6pment Director
Attachments:
A — Hotel Map and List
10
21-57
ATTACHMENT A
Hotel Map and List
11
21-58
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nore1s
101
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101
(PA
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L•I:
Tag
Name of Establishment
Address
GP
Zoning
Coastal land
Use and Zoning
Appeal Area
Resort Qualities
Eligible for
Interpretation
Non -Appeal Area
Resort Qualities
1
Renaissance Newport Beach
4500 MacArthur Blvd
MU -H2
PC -15 (Office Site A)
--
--
Yes
Yes
2
Fashion Island Hotel
690 Newport Center Drive
MU -H3
PC -56
--
--
Yes
Yes
3
Hyatt Regency John Wayne Airport
4545 MacArthur Blvd
MU -H2
PC11 (Hotel Site 1)
--
--
Yes
Yes
4
1 Newport Beach Marriot
900 Newport Center Dr
CV
CV
CV-B/CV
No
Yes
Yes
5
Lido House
3300 Newport Boulevard
CV -LV
CV -LV
CV -LV
Bisected
Yes
No
6
Newport Dunes
1131 Back Bay Drive
PR
PC48
PR/PC48
Yes
No
No
7
Balboa Bay Resort
1221 West Coast Highway
CV
PC45 (Resort)
CV-B/PC45
Yes
Yes
No
8
Newport Beach Marriot Bayview
500 Bayview Circle
CV
PC32
CV-A/PC-32
Bisected
Yes
No
9
The Resort at Pelican Hill
22701 Pelican Hill Rd
CV
PC52 (PA13C-
Tourist Commercial)
PC52
Bisected
Yes
No
10
Hyatt Regency Newport Beach
1107 Jamboree Rd
CV
CV
CV-B/CV
Bisected
Yes
No
11
Balboa Inn
105 Main St.
CV
CV
CV-B/CV
Yes
Yes
No
12
Bay Shores Peninsula Hotel
1800 West Balboa Blvd.
CV
CV
CV-A/CV
Yes
No
No
13
Little Inn By The Bay
2627 Newport Blvd.
CV
CV
CV-A/CV
Bisected
No
No
14
Newport Channel Inn
6100 West Coast Highway
CV
CV
CV-A/CV
No
No
No
15
Hotel Solarena
6208 West Coast Highway
CV
CV
CV-A/CV
No
No
No
16
Holiday Inn Express
2300 West Coast Highway
CV
CV
CV-A/CV
Bisected.
No
No
17
Pine Knot
6302 West Coast Highway
CV
CV
CV-A/CV
No
No
No
18
Marriot's Newport Coast Villas
23000 Newport Coast Dr
CV
PC52 (PA13C-
Tourist Commercial)
PC52
Bisected
No
No
19
Doryman's Inn
2102 West Ocean Front
CV
CV
CV-B/CV
Yes
No
No
20
Crystal Cove Beach Cottages
35 Crystal Cove
OS
PC52 (PA17)
PC52 (PA17)
Yes
No
No
21
Extended Stay America OC John Wayne Airport
4881 Birch Street
CG
PC15 (Retail and
Service Site 1)
_
_
No
No
22
The Newport Beach Hotel A Four Sisters Inn
2306 W Oceanfront
CV
CV
CV-B/CV
Yes
No
No
21-60
ATTACHMENT D
May 6, 2021 Planning
Commission Staff Report
21-61
0.�EWP°R �. CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
r May 6, 2021
LIF0Pk- Agenda Item No. 6
SUBJECT: Interpreting Accessory Residential as an Allowed Use within Resort
Hotels (PA2021-096)
■ Director's Determination No. DD2021-01
SITE LOCATION: Various Resort Hotel Properties
APPLICANT: City of Newport Beach
PLANNER: Jaime Murillo, Principal Planner
949-644-3209 imurilloanewaortbeachca.aov
PROJECT SUMMARY
The Community Development Director has issued a determination that residential uses
are allowable as an accessory use to resort hotels under certain parameters. This
determination is consistent with City Council Policy K-4 (Reducing the Barriers to the
Creation of Housing).
RECOMMENDATION
Receive and file Director's Determination No. DD2021-01 (Attachment No. PC 1).
BACKGROUND
Council Policy K-4 (Reducing the Barriers to the Creation of Housing)
At the March 9, 2021 City Council meeting, the City Council adopted Resolution No. 2021-
18 (Attachment No. PC 2) adding City Council Policy K-4 (Reducing the Barriers to the
Creation of Housing). Council Policy K-4 recognizes that the City has several major
constraints on existing lands that severely limit or totally restrict the City's ability to
accommodate growth to the extent identified in the 6th Cycle Regional Housing Needs
Allocation ("RHNA"). As a result, new and flexible land use and zoning regulations and
strategies should be developed in order to reasonably and practically accommodate this
ambitious State housing mandate while protecting the character and maintaining a quality
of life that makes Newport Beach a special place to live, work, and visit.
Council Policy K-4 directs City staff to develop, modify as necessary, and aggressively
implement various strategies and action plans that are designed to accelerate housing
production consistent with the policy, including encouraging and incentivizing the
development of mixed-use hotels. Mixed-use hotels are an established trend in the
hospitality industry that incorporate hotel -branded residential units as an accessory use
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located within a resort hotel complex where residents enjoy access to the full range of
services, facilities, and amenities provided by the hotel operator or brand. These hotel -
residential uses cannot exist without the hotel's services, facilities, and amenities.
Council Policy K -4's goals include interpreting ambiguities in the City of Newport Beach
General Plan, Coastal Land Use Plan, and Titles 20 (Planning and Zoning) and 21 (Local
Coastal Program Implementation Plan) of the Newport Beach Municipal Code ("NBMC")
to allow hotels and motels, located outside of the Coastal Commission Appeal
Jurisdiction, to convert up to thirty percent (30%) of their approved hotel rooms into
residential units on a one-for-one basis. Such an interpretation would allow for residential
units to be deemed an accessory use to the principal use of a hotel and find that such
residential uses are consistent with the hotel's underlying General Plan, Coastal Land
Use Plan and municipal code land use and zoning designations.
DISCUSSION
Need for Interpretation
Title 20 (Planning and Zoning) and Title 21 (Local Coastal Program Implementation Plan)
of the Newport Beach Municipal Code ("NBMC") define "hotel" as an establishment that
provides guest rooms or suites for a fee to transient guests for sleeping purposes. Access
to units is primarily from interior lobbies, courts, or halls. Related accessory uses may
include conference rooms and meeting rooms, restaurants, bars, and recreational facilities.
Guest rooms may or may not contain kitchen facilities for food preparation. Hotels with
kitchen facilities are commonly known as extended stay hotels. A hotel operates subject to
taxation under California Revenue and Taxation Code Section 7280.
Neither Title 20 (Planning and Zoning) nor Title 21 (Local Coastal Program Implementation
Plan) list residential uses as part of the definition of "hotel". Both Title 20 and Title 21
definitions of "hotel" are out of date and do not reflect current industry practice. Specifically,
the definition of "hotel" has not been updated to designate residential uses as an accessory
use, which has become common practice for destination resort hotels (mixed-use hotels).
While the definition of a hotel does not prohibit residential uses a Director's Determination
is necessary to fill the gap between contemporary practice and the exact wording of Titles
20 and Title 21.
Authority for Interpretation
Sections 20.12.020 and 21.12.020 (Rules of Interpretation) of the NBMC authorize the
Community Development Director to interpret the meaning of provisions of the Zoning Code
and Local Coastal Program Implementation Plan. The attached Director's Determination is
intended to implement City Council direction provided in Council Policy K-4 and includes
facts in supporting of required findings under NBMC Sections 20.12.020.E and
21.12.020.E.
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Planning Commission, May 6, 2021
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Summary of Determination
Residential uses would be permitted as an accessory use to hotels subject to the following:
• Applicable only to resort hotels, a self-contained destination that provides for all
travel accommodation needs in one location, including but not limited to restaurants,
bars, shopping, and recreational facilities.
• Must be located outside the appeal area identified in California Public Resources
Code Section 30603(a) as generally depicted on the Post-LCP Certification Permit
and Appeal Jurisdiction Map.
• Approved hotel rooms may be converted to residential units but only on a one-for-
one basis.
• The residential use shall at all times be accessory to the hotel use, and the residential
units shall comprise no more than 30 percent of the approved hotel rooms.
• The residential units may be located within a repurposed hotel or in a new residential
structure.
• A property owner that desires to have an accessory residential use at their hotel shall
process a conditional use permit and coastal development permit (if applicable). In
reviewing said permits, the review authority shall ensure adequate parking is
provided to accommodate the residential units through surplus parking, shared
parking, or the adoption of a parking management plan.
Potential impacts to public access, affordable housing, and the loss of transient
occupancy tax must be mitigated by entering into a Development Agreement with the
City or by some other means deemed appropriate.
There are currently twenty-two (22) hotels in the City, of which ten (10) hotels qualify as a
resort hotel (see Attachment A of Director's Determination). Of the ten (10) resort hotels in
the City, one (1) hotel is located in the coastal zone, but completely outside the Coastal
Commission Appeal Jurisdiction area, and three (3) hotels are located outside the coastal
zone. Therefore, this interpretation would apply to the following four resort hotel properties
in the City:
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Table 1. Applicable Resort Hotel Properties in the City
Map
Hotel Name
Location
General Plan
Local Coastal
Zoning
ID
Program
1
Renaissance
4500 MacArthur Blvd.
Mixed -Use
N/A- Outside Coastal
Koll Center Planned
Newport Beach
Horizontal
Zone
Community (PC15)
MU -H2
2
Fashion Island
690 Newport Center Dr.
MU -H3
N/A- Outside Coastal
North Newport
Hotel
Zone
Center Planned
Community PC56
3
Hyatt Regency
4545 MacArthur Blvd.
MU -H2
N/A- Outside Coastal
Newport Place
John Wayne
Zone
Planned Community
Airport
PC11
4
Newport Beach
900 Newport Center Dr.
Visitor Serving
Commercial Visitor-
Commercial Visitor -
Marriot
Commercial
Serving (CV -B) /Visitor
Serving (CV)
(CV)
Serving Commercial
(CV)
Appeals or Call for Review
Pursuant to NBMC Sections 20.64.030 and 21.64.030, within 14 days following the date
of the Director's Determination, any interested party may file an appeal to the Planning
Commission. Alternatively, any member of the Planning Commission may call this item
for review and bring the determination in front of the entire Commission for review at a
future meeting. The Commission may choose to repeal or modify the determination at
that time. The appeal or call for review deadline is Friday, May 14, 2021.
Environmental Review
This determination is not a project subject to the California Environmental Quality Act in
accordance with Section 21065 of the California Public Resources Code ("CEQA") and
Sections 15060 (c)(2), 15060 (c)(3), and 15378 of the California Code of Regulations Title
14, Division 6, Chapter 3 ("CEQA Guidelines"). The proposed action is also exempt
pursuant to CEQA Guidelines Section 15061(b)(3), the general rule that CEQA applies only
to projects, which have the potential for causing a significant effect on the environment.
While this determination would result in an interpretation that allows residential uses as
an accessory use to resort hotels, it does not authorize new development that would
directly result in physical change to the environment.
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Public Notice
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the Planning Commission considers the item).
Prepared by:
JaKe Murillo
Principal Planner
ATTACHMENTS
Submitted by:
Jim Campbell
Deputy Community Development Director
PC 1 Director's Determination No. DD2021-01
PC 2 Council Policy K-4
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ATTACHMENT IF
Planning Commission Resolution
No. PC2021-016
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DocuSign Envelope ID: C1295143-CFF7-493D-832A-4260F97AD786
Planning Commission Regular Meeting Minutes
May 6, 2021
NOES:
RECUSED:
ABSENT:
X. DISCUSSION ITEMS
ITEM NO. 6 DIRECTOR'S INTERPRETATION FOR ACCESSORY RESIDENTIAL USES ASSOCIATED
WITH HOTELS (PA2021-096)
Site Location: Citywide
Summary:
The Community Development Director has issued a determination that residential uses are allowable
as an accessory use to resort hotels under certain parameters. This determination is consistent with City
Council Policy K-4 (Reducing the Barriers to the Creation of Housing).
Recommended Action: Receive and file.
Community Development Director Jurjis reported the item is presented to the Planning Commission in order to
provide transparency for the Planning Commission and community. Local travel is returning, but international
and group travel will return over many years. Business travel is questionable due to the use of virtual meetings.
To support the hotel industry, the Council adopted Policy K-4 that covers accessory dwelling units (ADU), mixed-
use, and resort hotels. The Director's Determination looks at the conversion of hotel units, a maximum of 30
percent on a one-to-one basis to residential units. The Determination does not trigger Section 423 but recognizes
a land use. Residential can be an accessory use to a resort hotel. Limiting conversion to a maximum of 30
percent of units preserves the primary use as a hotel.
In answer to Commissioner Rosene's inquiries, Community Development Director Jurjis advised that a hotel can
increase or decrease a room's size. The Determination does not focus on floor area. Trip count is a sensitive
issue, and a one-to-one conversion does not increase the trip count. The conversion is tied to room count. The
Determination also applies to the demolition and rebuilding of hotel units.
Jim Mosher did not understand how the Director made the Determination of what has or does not have resort -
like qualities. One-third of a hotel could be demolished and replaced with a completely residential building. The
Determination seems to be inconsistent with Greenlight, the General Plan, and history. Council Policy K-4 is
inconsistent with Policy A-18.
In reply to Commissioner Koetting's query, Community Development Director Jurjis indicated the units may be
sold or leased but not time shared.
In response to Commissioner Ellmore's questions, Community Development Director Jurjis indicated the
Director's Determination is consistent with Council policy. Section 423 specifically relates to General Plan
amendments.
Chair Weigand stated the Director's Determination helps the hotel industry, provides housing, and creates
funding that can be used for homeless programs, transitional housing, or affordable housing.
XI. STAFF AND COMMISSIONER ITEMS
ITEM NO. 7 MOTION FOR RECONSIDERATION
None
ITEM NO. 8 REPORT BY THE COMMUNITY DEVELOPMENT DIRECTOR OR REQUEST FOR
MATTERS WHICH A PLANNING COMMISSION MEMBER WOULD LIKE PLACED ON A
FUTURE AGENDA.
Deputy Community Development Director Campbell reported the City Council reviewed the draft Housing
Element in a study session and directed staff to increase the number of ADUs and adjust the density and
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ATTACHMENT IF
Planning Commission Resolution
No. PC2021-016
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RESOLUTION NO. PC2021-016
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, DENYING AN APPEAL
AND UPHOLDING THE COMMUNITY DEVELOPMENT
DIRECTOR'S DETERMINATION NO. DD2021-001, AND
ASSOCIATED FINDINGS, INTREPRETING ACCESSORY
RESIDENTIAL AS AN ALLOWED USE WITHIN RESORT HOTELS
(PA2021-096)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
At the February 9, 2021 City Council Study Session related to the Housing Element
Update, the City Council provided staff direction to develop a new Council policy and
amend the City of Newport Beach's ("City") land use and zoning codes related to housing
opportunities.
2. At the March 9, 2021 City Council meeting, the City Council adopted Resolution No. 2021-
18 adding City Council Policy K-4 (Reducing the Barriers to the Creation of Housing).
3. Council Policy K-4 recognizes that the City has several major constraints on existing
lands that severely limit or totally restrict the City's ability to accommodate growth to the
extent identified in the Sixth Cycle Regional Housing Needs Allocation ("RHNA"). As a
result, new and flexible land use and zoning regulations and strategies should be
developed in order to reasonably and practically accommodate this ambitious State
housing mandate while protecting the character and maintaining a quality of life that
makes Newport Beach a special place to live, work, and visit.
4. Council Policy K-4 directs City staff to develop, modify as necessary, and aggressively
implement various strategies and action plans that are designed to accelerate housing
production consistent with the policy, including encouraging and incentivizing the
development of mixed-use hotels.
5. The goals of Council Policy K-4 include interpreting ambiguities in the City's General
Plan, Coastal Land Use Plan, Title 20 (Planning and Zoning) and Title 21 (Local Coastal
Program Implementation Plan) of the Newport Beach Municipal Code ("NBMC") to allow
hotels, located outside of the Coastal Commission Appeal Jurisdiction, to convert up to
30 percent of their approved hotel rooms into residential units on a one-for-one basis.
Such an interpretation would allow for residential units to be deemed an accessory use
to the principal use of a hotel and find that such residential uses are consistent with the
hotel's underlying General Plan, Coastal Land Use Plan and NBMC land use and zoning
designations.
6. Mixed-use hotels are an established trend in the hospitality industry that incorporate
hotel -branded residential units as an accessory use located within a resort hotel
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complex where residents enjoy access to the full range of services, facilities, and
amenities provided by the hotel operator or brand. These hotel -residential uses cannot
exist without the hotel's services, facilities, and amenities.
7. There are currently twenty-two (22) hotels in the City, of which ten (10) hotels qualify as a
resort hotel, a self-contained destination that provides for all travel accommodation needs
in one location, including but not limited to restaurants, bars, shopping, and recreational
facilities.
8. Of the ten (10) resort hotels in the City, one (1) hotel is located in the coastal zone, but
completely outside the Coastal Commission Appeal Jurisdiction area, and three (3) hotels
are located outside the coastal zone. Therefore, the following four (4) hotels meet the
criteria of a resort hotel located outside the Coastal Commission Appeal Jurisdiction:
a. The Renaissance Newport Beach located at 4500 MacArthur Boulevard
("Renaissance") is designated MU -H2 (Mixed -Use Horizontal) by the General Plan
Land Use Element and is located within the Koll Center Planned Community (PC15)
Zoning District. Hotels are an allowed use, subject to a conditional use permit. The
Renaissance is not located within the coastal zone.
b. The Hyatt Regency John Wayne Airport located at 4545 MacArthur Boulevard
("Hyatt") is designated MU -H2 (Mixed -Use Horizontal) by the General Plan Land
Use Element and is located within Hotel Site 1 of the Newport Place Planned
Community (PC11) Zoning District. Hotels are an allowed use, subject to a
conditional use permit. The Hyatt is not located within the coastal zone.
C. The Fashion Island Hotel located at 690 Newport Center Drive ("Fashion Island
Hotel") is designated MU -H3 (Mixed -Use Horizontal) by the General Plan Land Use
Element and is located within Block 600 Subarea of the North Newport Center
Planned Community (PC56) Zoning District. Hotels are an allowed use, subject to
a conditional use permit. The Fashion Island Hotel is not located within the coastal
zone.
d. The Newport Beach Marriott located at 900 Newport Center ("Marriott") is
designated CV (Visitor Serving Commercial) by the General Plan Land Use
Element and is located within the Commercial Visitor -Serving Zoning District. Hotels
are an allowed use, subject to a conditional use permit. The Marriott is located within
the coastal zone. The Coastal Land Use Plan category is CV -B (Visitor Serving
Commercial) and is located within the CV (Commercial Visitor -Serving) Coastal
Zoning District. Hotels are allowed subject to a conditional use permit and coastal
development permit.
9. Title 20 (Planning and Zoning) of the NBMC ("Title 20" or "Zoning Code") is intended to
carry out the policies of the City of Newport Beach General Plan. Section 20.10.030
(Authority—Relationship to General Plan) of the NBMC, states that the Zoning Code is
the primary tool used by the City to carry out the goals, objectives, and policies of the
General Plan. It is intended that all provisions of the Zoning Code be consistent with the
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General Plan and that any development, land use, or subdivision approved in compliance
with these regulations will also be consistent with the General Plan.
10. The PC11, PC15, and PC56 Planned Community Development Plans state that the
requirements of the Zoning Code shall apply, unless otherwise stated.
11. Section 20.12.020 (Rules of Interpretation) of the NBMC authorizes the Community
Development Director to interpret the meaning of provisions of the Zoning Code.
12. Title 21 (Local Coastal Program Implementation Plan) of the NBMC is intended to carry
out the policies of the City of Newport Beach Coastal Land Use Plan and Coastal Act of
1976. Section 21.10.030 (Authority—Relationship to Coastal Land Use Plan) of the
NBMC states that the Local Coastal Program Implementation Plan is the primary tool used
by the City to carry out the goals, objectives, and policies of the Coastal Land Use Plan. It
is intended that all provisions of the Local Coastal Program Implementation Plan be
consistent with the Coastal Land Use Plan and that any development, land use, or
subdivision approved in compliance with these regulations will also be consistent with the
Coastal Land Use Plan, and that if any proposed development is located between the first
public road and the sea or shoreline of any body of water located within the coastal zone,
any approved development must be in conformity with the public access and recreation
policies of Chapter 3 of the Coastal Act. This determination does not impact any properties
located within the first public road and the sea or shoreline of any body of water.
13. Section 21.12.020 (Rules of Interpretation) of the NBMC authorizes the Community
Development Director to interpret the meaning of provisions of the Implementation Plan.
14. Both Title 20 (Planning and Zoning) and Title 21 (Local Coastal Program Implementation
Plan) define "hotel" as an establishment that provides guest rooms or suites for a fee to
transient guests for sleeping purposes. Access to units is primarily from interior lobbies,
courts, or halls. Related accessory uses may include conference rooms and meeting
rooms, restaurants, bars, and recreational facilities. Guest rooms may or may not contain
kitchen facilities for food preparation. Hotels with kitchen facilities are commonly known as
extended stay hotels. A hotel operates subject to taxation under California Revenue and
Taxation Code Section 7280.
15. Neither Title 20 (Planning and Zoning) nor Title 21 (Local Coastal Program Implementation
Plan) list residential uses as part of the definition of "hotel." Both Title 20 and Title 21
definitions of "hotel" are out of date and do not reflect current industry practice. Specifically,
the definition of "hotel" has not been updated to designate residential uses as an accessory
use, which has become common practice for destination resort hotels (mixed-use hotels).
While the definition of a hotel does not prohibit residential uses, a Director's Determination
is necessary to fill the gap between contemporary practice and the exact wording of Title
20 and Title 21.
16. On April 30, 2021, consistent with City Council's direction provided in Council Policy K-4,
the Community Development Director issued Director's Determination No. DD2021-001
interpreting accessory residential as an allowed use within resort hotels.
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17. On May 14, 2021, Stop Polluting Our Newport ("SPON") filed an appeal of the Director's
Determination No. DD2021-001 alleging that the determination improperly converts
General Plan -approved hotel allocations into General Plan -approved dwelling unit
allocations without Greenlight (Charter Section 423) tracking, in alleged contravention
of Council Policy A-18. The appeal also states that the determination adds the potential
for some 250 new dwelling units to the General Plan Statistical Area L1, which would
require voter approval if processed as a General Plan Amendment.
18. A de novo public hearing was held on July 8, 2021, in the Council Chambers located at
100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the
hearing was given in accordance with California Government Code Section 54950 et
seq. ("Ralph M. Brown Act") and Chapters 20.62 and 21.62 (Public Hearings) of the
Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and
considered by, the Planning Commission at this hearing.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
This Director's Determination is not subject to the California Environmental Quality Act in
accordance with Section 21065 of the California Public Resources Code ("CEQA") and Sections
15060(c)(2), 15060(c)(3), and 15378 of the California Code of Regulations Title 14, Division 6,
Chapter 3 ("CEQA Guidelines"). The Director's Determination is also exempt pursuant to CEQA
Guidelines Section 15061(b)(3), the common sense exemption that CEQA applies only when
there is the potential for causing a significant effect on the environment. Specifically, the
determination is for the purpose of interpreting the Zoning Code and Local Coastal Program
Implementation Plan. This action will not change the existing land use designations, will not
increase intensity of use, and will not authorize new development that would directly result in
physical change to the environment.
SECTION 3. REQUIRED FINDINGS.
Planning and Zoning (Title 20) Interpretation
In accordance with Section 20.12.020(E) (Rules of Interpretation — Unlisted Uses of Land) of
the NBMC, the Director, and the Planning Commission on appeal, may determine that a
proposed land use that is not listed in Part 2 of this title (Zoning Districts, Allowable Land Uses,
and Zoning District Standards) may be allowed if the following findings can be made:
Finding:
A. The characteristics of, and activities associated with, the proposed use are equivalent to
those of one or more of the uses listed in the zoning district as allowable, and will not involve
a greater level of activity, population density, intensity, traffic generation, parking, dust,
odor, noise, or similar impacts than the uses listed in the zoning district;
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Facts in SUDDort of Findin
1. The allowance of residential accessory units within a hotel will be regulated to ensure
the underlying characteristics and activities remain equivalent to the listed hotel use
within the applicable CV (Commercial Visitor -Serving) Coastal Zoning District or PC
(Planned Community) Zoning District.
2. Approved hotel rooms will be allowed to convert to residential uses on a one-for-one
basis to ensure the accessory residential use does not involve a greater level of activity,
population density, traffic generation, parking, dust, odor, noise, or similar impacts than
the other uses listed within the applicable CV (Commercial Visitor -Serving) Coastal
Zoning District or PC (Planned Community) Zoning District.
3. The conversion of hotel rooms to residential uses will be limited to no more than 30
percent of the total number of approved hotel rooms. This restriction will further ensure
that residential uses remain an accessory use to the hotel and do not change the primary
use of the property from hotel to residential.
4. The traffic generation associated with a residential use is similar or less than the traffic
generation for a resort hotel use. According to the Institute of Transportation Engineers
Trip Generation Manual (10th Edition), a Multi -Family Housing Mid -Rise (three [3] to ten
[10] levels) development (ITE Code 221) would generate 0.36 and 0.44 average AM and
PM weekday peak hour trips per dwelling unit. A Resort Hotel (ITE Code 330) would
generate 0.32 and 0.41 average AM and PM weekday peak hour trips per room. The
published ITE trip rates are generally for stand-alone development (e.g. stand-alone
hotel or multi -family housing buildings); however, the reality is accessory residential
dwelling units will have lower rates due to the additional on-site amenities provided.
Therefore, following conversion of a hotel room to a residential unit, the anticipated traffic
generation will be similar or lower.
5. Pursuant to Council Policy K-3 (Implementation Procedures for the California
Environmental Quality Act) and in compliance with Senate Bill 743, the conversion of a
resort hotel room to a residential unit is considered to be less than significant impact on
transportation/traffic and no further vehicle miles traveled ("VMT") analysis is required
since all trips associated with such conversion have already been accounted for as
approved hotel rooms. As a result, conversions are expected to fall below the adopted
land use screening threshold of 300 or less daily trips. For ITE Code 330, there is no
listed daily trip rate; however, the City Traffic Phasing Ordinance states that if there is
not an applicable rate, the City Traffic Engineer may, in the exercise of his/her
professional judgement, authorize the use of trip generation rates in San Diego
Association of Government's (SANDAG) Traffic Generators or on the basis of actual site
counts. The SANDAG daily trip rate for Resort Hotel is eight (8) daily trips per room. The
SANDAG daily trip rate for Multi -Family Condominium is also eight (8) daily trips per
unit. Therefore, the conversion of a resort hotel room to a residential unit would result in
same or lower daily trips, and below the screening threshold of 300 daily trips requiring
VMT analysis.
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6. Based on the similar vehicular trips associated with accessory residential uses, levels
of odor, dust, noise, or similar impacts at a hotel property with accessory residential
uses is expected to be similar or less.
7. Mixed-use hotels are a form of accommodation that affords buyers with access to the
full range of services, facilities, and amenities provided by the hotel.
8. The definition of hotel allows related accessory uses such as conference rooms and
meeting rooms, restaurants, bars, and recreational facilities that can generate additional
parking demand substantially higher than residential parking rates. The conversion of hotel
rooms to residential units would constitute an amendment to the conditional use permit. In
reviewing such amendments, approval of the conditional use permit would require
ensuring adequate parking is provided to accommodate the residential units through
surplus parking, shared parking, or the adoption of a parking management plan.
Finding:
B. The proposed use will meet the purpose/intent of the zoning district that is applied to the
location of the use;
Facts in Support of Finding:
1. The CV (Commercial Visitor -Serving) Coastal Zoning District is intended to provide for
areas appropriate for accommodations, goods, and services intended to primarily serve
visitors to the City. Hotels are allowed in the CV (Commercial Visitor -Serving) Coastal
Zoning District subject to obtaining a conditional use permit pursuant to Section
20.20.020 of the NBMC. A hotel with an accessory residential use that is limited to no
more than 30 percent of the approved hotel rooms will primarily serve visitors to the City.
2. The resort hotels located within PC11, PC15, and PC56 are located within the MU -H
(Mixed -Use Horizontal) land use category of the General Plan. The MU -H designations
are intended to provide for the development of areas for a horizontally distributed mix of
uses, which may include general or neighborhood commercial, commercial offices,
multi -family residential, visitor -serving and marine -related uses, and/or buildings that
vertically integrate residential with commercial uses. The hotel -branded units are
consistent with the MU -H designations as residential units are clearly allowed, and a
hotel with an accessory residential use that is limited to no more than 30 percent of the
approved hotel rooms will primarily serve visitors to the City.
3. Mixed-use hotels are common practice within the hotel industry and provide visitor
serving amenities and services consistent with the CV (Commercial Visitor -Serving)
Coastal Zoning District and PC (Planned Community) Zoning District.
4. Fact in Support of Finding A.7 is hereby incorporated.
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Finding:
C. The proposed use will be consistent with the goals, objectives, and policies of the General
Plan, or any applicable specific plan;
Facts in Support of Finding:
1. The CV (Commercial Visitor -Serving) Coastal Zoning District General Plan land use
designation is intended to provide for areas appropriate for accommodations, goods,
and services intended to serve primary visitors to the City. By limiting residential uses
to an accessory use at a hotel property, the primary purpose of the hotel meets the
goals, objectives and policies of the General Plan, or any applicable specific plan.
2. The MU -H (Mixed -Use Horizontal) designations are intended to provide for the
development of areas for a horizontally distributed mix of uses, which may include
general or neighborhood commercial, commercial offices, multi -family residential,
visitor -serving and marine -related uses, and/or buildings that vertically integrate
residential with commercial uses. Mixed-use hotels are consistent with the MU -H
designations as residential units are clearly allowed, and a hotel with an accessory
residential use that is limited to no more than 30 percent of the approved hotel rooms
will primarily serve visitors to the City.
3. The trend in the hotel industry is to locate limited residential uses at a hotel property to
create resort amenities that can be shared by residents, visitors, and tourists alike.
4. This interpretation implements Land Use Element Policy LU 2.3 (Range of Residential
Choices) by providing new opportunities for the development of residential units in
response to community and regional needs for housing.
5. This interpretation implements Land Use Element Policy LU 3.2 (Growth and Change)
which encourages enhancement of existing neighborhoods, districts, and corridors,
allowing for re -use and infill with uses that are complementary in type, form, scale, and
character. Changes in use and/or density/intensity should only be considered in those
areas that are economically underperforming, are necessary to accommodate the City's
share of regional population growth, improve the relationship and reduce commuting
distance between home and jobs, or enhance the values that distinguish Newport Beach
as a special place to live for its residents. The hotel industry has been one of the hardest
hit industries due to the COVID-19 pandemic and for some hotels, a full recovery of the
industry is not anticipated for many years. Mixed-use hotels provide an opportunity to
revitalize older and/or underperforming hotels to maintain their competitive standing by
creating multiple revenue streams that can support improvements to the property
enhancing the visitor experience. Economies of scale created by shared facilities,
amenities, and services add additional benefit to mixed-use hotel developments. This
cross pollination of business benefits both the hotel and the resident. It may also
increase occupancy rates at the resort by creating increased synergy between uses and
social gathering opportunities, boosting transient occupancy taxes while providing in -fill
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housing opportunities to partially assist the City in meeting its RHNA obligation in highly
desirable and built -out areas.
Finding:
D. The proposed use is not listed as allowable in another zoning district,
Fact in Support of Finding:
Hotels with an accessory residential use are not listed as allowable in any other zoning
district. Stand-alone residential uses, which are allowable in another zoning district,
would not be permitted under this interpretation.
Finding:
E. The proposed use is not a prohibited or illegal use.
Fact in Support of Finding:
1. Hotels with an accessory residential use are neither a prohibited or an illegal use.
Local Coastal Program Implementation Plan (Title 21) Interpretation
In accordance with Section 21.12.020(E) (Rules of Interpretation — Unlisted Uses of Land) of
the NBMC, the Director, and Planning Commission on appeal, may determine that a proposed
land use that is not listed in Part 2 of this title (Coastal Zoning Districts, Allowable Land Uses,
and Coastal Zoning District Standards) may be allowed if the following findings can be made:
Finding:
F. The characteristics of, and activities associated with, the proposed use are equivalent to
those of one or more of the uses listed in the coastal zoning district as allowable, and will
not involve a greater level of activity, population density, intensity, traffic generation,
parking, dust, odor, noise, or similar impacts than the uses listed in the coastal zoning
district,
Facts in Support of Finding:
The allowance of residential accessory units within a hotel will be regulated to ensure
the underlying characteristics and activities remain equivalent to the listed hotel use
within the applicable CV (Commercial Visitor -Serving) Coastal Zoning District.
2. Approved hotel rooms will be allowed to convert to residential uses on a one-for-one
basis to ensure the accessory residential use does not involve a greater level of activity,
population density, traffic generation, parking, dust, odor, noise, or similar impacts than
the other uses listed within the applicable CV (Commercial Visitor -Serving) Coastal
Zoning District.
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3. The conversion of hotel rooms to residential units would constitute a major change in hotel
operations requiring a coastal development permit. The coastal development permit review
will require adequate parking be provided to accommodate the residential units through
surplus parking, shared parking, or the adoption of a parking management plan, and to
ensure the protection of lower-cost visitor accommodations.
4. Facts in Support of Finding A.3 through A.8 are hereby incorporated by reference.
Finding:
G. The proposed use will meet the purpose/intent of the coastal zoning district that is applied
to the location of the use;
Facts in Support of Finding:
The CV (Commercial Visitor -Serving) Zoning District is intended to provide for areas
appropriate for accommodations, goods, and services intended to primarily serve
visitors to the City. A hotel with an accessory residential use that is limited to no more
than 30 percent of the approved hotel rooms will primarily serve visitors to the City.
2. Mixed-use hotels are common practice within the hotel industry and provide visitor
serving amenities and services consistent with the CV (Commercial Visitor -Serving)
Coastal Zoning District.
Finding:
H. The proposed use will be consistent with the goals, objectives, and policies of the Coastal
Land Use Plan;
Facts in Support of Finding:
The CV (Commercial Visitor -Serving) Coastal Zoning District Coastal Land Use Plan
designation is intended to provide for areas appropriate for accommodations, goods,
and services intended to serve primary visitors to the City. By limiting residential uses
to an accessory use at a hotel property, the primary purpose of the hotel meets the
goals, objectives and policies of the Coastal Land Use Plan that prioritize visitor -serving
commercial recreational facilities designed to enhance public opportunities for coastal
recreation over other uses.
2. The trend in the hotel industry is to locate limited residential uses at a hotel property to
create resort amenities that can be shared by residents, visitors, and tourists alike.
3. This interpretation would restrict its applicability to hotel properties located outside of the
appeal areas identified in the California Public Resources Code Section 30603(a) as
generally depicted on the Post-LCP Certification Permit and Appeal Jurisdiction Map.
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This applicability restriction ensures that coastal access and coastal -dependent uses
are not impacted.
4. Any development would be required to adhere to all LCP goals and policies including
those related to public access and resource protection, and the protection of lower-cost
visitor accommodations.
Finding:
1. The proposed use is not listed as allowable in another coastal zoning district; and
Fact in Support of Finding:
Hotels with an accessory residential use are not listed as allowable in another coastal
zoning district. Separate or stand-alone residential uses operating as primary land uses,
which are allowable in another coastal zoning district, would not be permitted under this
interpretation.
Finding:
J. The proposed use is not a prohibited or illegal use.
Fact in Support of Finding:
Hotels with an accessory residential use are neither a prohibited or an illegal use.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
The Planning Commission of the City of Newport Beach hereby finds this Director's
Determination is not subject to the California Environmental Quality Act ("CEQA")
pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably
foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is
not a project as defined in Section 15378) of the CEQA Guidelines, California Code of
Regulations, Title 14, Division 6, Chapter 3, because it has no potential for resulting in
physical change to the environment, directly or indirectly. The Director's Determination
is also exempt pursuant to CEQA Guidelines Section 15061(b)(3), the general rule
common sense exemption that CEQA applies only when there is the potential for causing
a significant effect on the environment. Specifically, the determination is for the purpose
of interpreting the Zoning Code and Local Coastal Program Implementation Plan. This
action will not change the existing land use designations, will not increase intensity of
use, and will not authorize new development that would directly result in physical change
to the environment.
2. The Planning Commission of the City of Newport Beach has considered the reasons cited
in the appeal and finds that Director's Determination No. DD2021-001 interpreting thal
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residential uses are permitted as an accessory use to hotels is authorized pursuant to
Director's authority granted in NBMC Sections 20.12.020 and 21.12.020. The Planning
Commission finds that the determination is consistent with City Council Policy K-4. The
restrictions described in Section 3 below will further ensure that residential uses remain
an accessory use to the hotel, do not increase the level of activity on a site, and do not
change the primary use of the property from hotel to residential. As such, an amendment
to the General Plan and Local Coastal Plan to change the land use designations or
increase the development limits is not required, and the determination does not violate
City Charter Section 423 and/or City Council Policy A-18.
3. The Planning Commission of the City of Newport Beach hereby denies the appeal and
upholds the Director's Determination No. DD2021-001 interpreting that residential uses
are permitted as an accessory use to hotels subject to the following:
a. This interpretation shall only apply to resort hotels, a self-contained destination
that provides for all travel accommodation needs in one location, including but not
limited to restaurants, bars, shopping, and recreational facilities. Residents shall
enjoy access to the full range of services, facilities, and amenities provided by
the hotel operator or brand.
b. The hotel property relying upon this interpretation shall be located outside the
appeal area identified in California Public Resources Code Section 30603(a) as
generally depicted on the Post-LCP Certification Permit and Appeal Jurisdiction
Map.
C. Approved hotel rooms may be converted to residential units but only on a one-for-
one basis.
d. The residential use shall at all times be accessory to the hotel use, and the
residential units shall comprise no more than 30 percent of the approved hotel
rooms.
e. The residential units may be located within a repurposed hotel or in a new
residential structure.
f. A property owner that desires to have an accessory residential use at their hotel
shall process a conditional use permit and coastal development permit (if
applicable). In reviewing said permits, the review authority shall ensure adequate
parking is provided to accommodate the residential units through surplus parking,
shared parking, or the adoption of a parking management plan.
g. Potential impacts to public access, affordable housing, and the loss of transient
occupancy tax must be mitigated by entering into a Development Agreement with
the City or by some other means deemed appropriate.
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4. This resolution shall become final and effective 14 days following the date this resolution
was adopted unless within such time an appeal is filed with the City Clerk in accordance
with the provisions of Title 20 and Title 21 of the Newport Beach Municipal Code.
PASSED, APPROVED, AND ADOPTED THIS 8TH DAY OF JULY, 2021.
AYES: Ellmore, Kleiman, Koetting, Lowrey, Rosene, and Weigand
NOES:
Curtis Ellmore, Secretary
21-82
ATTACHMENT G
July 8, 2021 Planning
Commission Staff Report
21-83
PQR CITY OF NEWPORT BEACH
3 n PLANNING COMMISSION STAFF REPORT
r July 8, 2021
cR�F�R��P Agenda Item No. 3
SUBJECT: Appeal of Interpretation Allowing Accessory Residential within Resort
Hotels (PA2021-096)
■ Director's Determination No. DD2021-001
SITE LOCATION: Various Resort Hotel Properties
APPLICANT: City of Newport Beach
PLANNER: Jaime Murillo, Principal Planner
949-644-3209, jmurillo newportbeachca.gov
SUMMARY
On April 30, 2021, the Community Development Director issued Director's Determination
No. DD2021-001 interpreting that residential uses are allowable as an accessory use to
resort hotels under certain parameters. In issuing the Director's Determination, the
Community Development Director was acting in accordance with the direction given by
the City Council in City Council Policy K-4 (Reducing the Barriers to the Creation of
Housing). On May 14, 2021, an appeal of the determination was filed by Stop Polluting
Our Newport ("SPON").
Based upon the facts and evidence set forth in this staff report and the attached
resolution, staff recommends that the Planning Commission deny SPON's appeal and
uphold Director's Determination No. DD2021-001, and the associated findings.
RECOMMENDATION
a) Conduct a de novo public hearing;
b) Find this Director's Determination is exempt from the California Environmental Quality
Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or
reasonably foreseeable indirect physical change in the environment) and 15060(c)(3)
(the activity is not a project as defined in Section 15378) of the CEQA Guidelines,
California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly. This
Director's Determination is also exempt pursuant to CEQA Guidelines Section
15061(b)(3), the general rule common sense exemption that CEQA applies only when
there is the potential for causing a significant effect on the environment; and
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c) Adopt Resolution No. PC2021-016 denying an appeal and upholding the Community
Development Director's Determination No. DD2021-001, and associated findings
(Attachment No. PC 1).
BACKGROUND
Council Policy K-4 (Reducing the Barriers to the Creation of Housing)
At the March 9, 2021 City Council meeting, the City Council adopted Resolution No. 2021-
18 (Attachment No. PC 2) adding City Council Policy K-4 (Reducing the Barriers to the
Creation of Housing). Council Policy K-4 recognizes that the City has several major
constraints on existing lands that severely limit or totally restrict the City's ability to
accommodate growth to the extent identified in the 6t" Cycle Regional Housing Needs
Allocation ("RHNA"). As a result, new and flexible land use and zoning regulations and
strategies should be developed in order to reasonably and practically accommodate this
ambitious State housing mandate while protecting the character and maintaining a quality
of life that makes Newport Beach a special place to live, work, and visit.
Council Policy K-4 directs City staff to develop, modify as necessary, and aggressively
implement various strategies designed to accelerate housing production consistent with
the policy, including encouraging and incentivizing the development of mixed-use hotels.
The goals of Council Policy K-4 include interpreting ambiguities in the City's General Plan,
Coastal Land Use Plan, Title 20 (Planning and Zoning) and Title 21 (Local Coastal
Program Implementation Plan) of the Newport Beach Municipal Code ("NBMC") to allow
hotels and motels, located outside of the Coastal Commission Appeal Jurisdiction, to
convert up to 30 percent of their approved hotel rooms into residential units on a one-for-
one basis. Such interpretation would allow for residential units to be deemed an
accessory use to the principal use of a hotel and find that such residential uses are
consistent with the hotel's and motel's underlying General Plan, Zoning Code, and Local
Coastal Plan Program land use and zoning designations.
Need for Interpretation
Title 20 (Planning and Zoning) and Title 21 (Local Coastal Program Implementation Plan)
of the Newport Beach Municipal Code ("NBMC") define "hotel" as an establishment that
provides guest rooms or suites for a fee to transient guests for sleeping purposes. Access
to units is primarily from interior lobbies, courts, or halls. Related accessory uses may
include conference rooms and meeting rooms, restaurants, bars, and recreational facilities.
Guest rooms may or may not contain kitchen facilities for food preparation. Hotels with
kitchen facilities are commonly known as extended stay hotels. A hotel operates subject to
taxation under California Revenue and Taxation Code Section 7280.
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Title 20 and Title 21 include a definition of hotel that is out of date and does not reflect current
industry practice. Specifically, the definition of "hotel" has not been updated to designate
residential uses as an accessory use, which has become common practice for destination
resort hotels (mixed-use hotels). While the definition of a hotel does not prohibit residential
uses, a Director's Determination is necessary to fill the gap between contemporary practice
and the exact wording of Title 20 and Title 21.
Director's Determination No. DD2021-001 (Interpreting Accessory Residential as an
Allowed Use within Resort Hotels)
On April 30, 2021, the Community Development Director issued Director's Determination
No. DD2021-001 (Attachment No. PC 3) consistent with direction provided in Council
Policy K-4. In summary, the determination would allow residential as an accessory use to
resort hotels subject to the following:
• Applicable only to resort hotels, a self-contained destination that provides for all
travel accommodation needs in one location, including but not limited to restaurants,
bars, shopping, and recreational facilities.
• Must be located outside the appeal area identified in California Public Resources
Code Section 30603(a) as generally depicted on the Post-LCP Certification Permit
and Appeal Jurisdiction Map.
• Approved hotel rooms may be converted to residential units but only on a one-for-
one basis.
• The residential use shall at all times be accessory to the hotel use, and the residential
units shall comprise no more than 30 percent of the approved hotel rooms.
• The residential units may be located within a repurposed hotel or in a new residential
structure.
• A property owner that desires to have an accessory residential use at their hotel shall
process a conditional use permit and coastal development permit (if applicable). In
reviewing said permits, the review authority shall ensure adequate parking is
provided to accommodate the residential units through surplus parking, shared
parking, or the adoption of a parking management plan.
Potential impacts to public access, affordable housing, and the loss of transient
occupancy tax must be mitigated by entering into a Development Agreement with the
City or by some other means deemed appropriate.
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May 6, 2021 Planning Commission Review
At the May 6, 2021 Planning Commission meeting, staff presented an overview of
Director's Determination No. DD2021-001 for receipt and file. The staff report for the item
included a detailed overview of the determination, including background, authority for the
determination, and applicability. The staff report is included as Attachment No. PC 4 for
reference.
DISCUSSION
'm
On May 14, 2021, SPON filed an appeal (Attachment No. PC 5) of the Director's
Determination alleging that the determination improperly converts General Plan -approved
hotel allocations into General Plan -approved dwelling unit allocations without Greenlight
(Charter Section 423) tracking, in alleged contravention of Council Policy A-18 (Protection
from Traffic and Density). The appeal also states that the determination adds the potential
for some 250 new dwelling units to the General Plan Statistical Area L1, which would
require voter approval if processed as a General Plan Amendment. Lastly, the appeal
indicates that staff should not be able to do what the City Council could not do without
voter approval.
Staff Response to Appeal
The central argument of the appeal is the belief that hotel room allocations provided in
the General Plan cannot be converted to dwelling unit allocations without an amendment
to the General Plan Land Use Element, and if an amendment application were processed,
a vote of the electorate would be required.
Authority for Interpretation Vested in the City Council
The City Council has the inherent authority to adopt policies and regulations subject to
applicable laws, the State Constitution, and the City Charter. This authority includes
interpreting the General Plan and any policy or regulations promulgated to implement it.
The City Council adopted City Council Policy K-4 that specifically allows for the
conversion of up to 30 percent of their approved hotel rooms into residential units on a
one-for-one basis. Council Policy K-4 deems the limited conversion to be an accessory
use to the principal use of a hotel and finds the accessory residential use at hotels
consistent with the General Plan, Zoning Code, and Local Coastal Plan Program land use
and zoning designations. The Director's Determination was issued by the Community
Development Director in furtherance of this policy and it includes additional detail for the
implementation that is consistent with Council Policy K-4.
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Director's Determination No. DD2021-001 is consistent with prior determinations, which
allowed for unlisted uses within the City's zoning districts. For example, in 2017, the
Community Development Director issued Director's Determination No. DD2017-002
(PA2017-207), which allowed Fire Station No. 2 within the Visitor Serving Commercial (CV)
Zoning District. This 2017 determination is similar to the determination under appeal
because: 1) the determination concerned property located in the Coastal Zone; 2) the
determination occurred post-LCP certification; and 3) the determination added a use that
was not previously listed as an allowable use. In other words, the City Council is within their
authority to interpret Charter Section 423, which requires voter approval of General Plan
Amendments defined as "major" amendments. Council Policy K-4 and Director's
Interpretation No. DD2021-001 are not General Plan Amendments, and therefore,
Charter Section 423 is not applicable.
City Council Policy A-18 (Attachment No. PC 6) was adopted to implement Charter
Section 423. It only provides guidance for the processing of General Plan Amendment
applications to determine when a vote of the electorate is required pursuant to Charter
Section 423. The matter at hand is not a General Plan Amendment application; therefore,
Charter Section 423 and City Council Policy A-18 are not applicable.
Authority for Interpretation and Compliance with General Plan and Local Coastal Program
Title 20 (Planning and Zoning) of the NBMC is intended to carry out the policies of the City
of Newport Beach General Plan. Section 20.10.030 (Authority—Relationship to General
Plan) of the NBMC states that the Zoning Code is the primary tool used by the City to carry
out the goals, objectives, and policies of the General Plan. It is intended that all provisions
of the Zoning Code be consistent with the General Plan and that any development, land
use, or subdivision approved in compliance with these regulations will also be consistent
with the General Plan. Section 20.12.020 (Rules of Interpretation) of the NBMC clearly
authorizes the Community Development Director to interpret the meaning of provisions of
the Zoning Code.
Similarly, Title 21 (Local Coastal Program Implementation Plan) of the NBMC is intended to
carry out the policies of the City of Newport Beach Coastal Land Use Plan and Coastal Act
of 1976. Section 21.10.030 (Authority—Relationship to Coastal Land Use Plan) of the
NBMC states that the Local Coastal Program Implementation Plan is the primary tool used
by the City to carry out the goals, objectives, and policies of the Coastal Land Use Plan. It
is intended that all provisions of the Local Coastal Program Implementation Plan be
consistent with the Coastal Land Use Plan and that any development, land use, or
subdivision approved in compliance with these regulations will also be consistent with the
Coastal Land Use Plan, and that if any proposed development is located between the first
public road and the sea or shoreline of any body of water located within the coastal zone,
any approved development must be in conformity with the public access and recreation
policies of Chapter 3 of the Coastal Act. Director's Determination No. DD2021-001 does not
impact any properties located within the first public road and the sea or shoreline of any
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body of water. Section 21.12.020 (Rules of Interpretation) of the NBMC clearly authorizes
the Community Development Director to interpret the meaning of provisions of the
Implementation Plan.
Since both Title 20 and Title 21 clearly grant the Director with the authority to interpret the
meaning of provisions of the Codes, including definitions, a General Plan Amendment and
Local Coastal Program Amendment are not needed. The draft resolution (Attachment No.
PC 1) includes facts in support of the required findings for the determination.
Primary Land Use Remains Unchanged
The Director's Determination does not change the primary land uses of a zoning district.
Rather, the Director's Determination only permits residential dwellings as an accessory use
to the primary use of the site as a resort hotel. The Director's Determination contains
regulations and restrictions to ensure the allowance of residential accessory units within a
hotel property does not change the primary land use and underlying characteristics within
the applicable zoning districts. To ensure the residential use remains accessory, the
Director's Determination, consistent with Council Policy K-4, establishes the following
parameters:
• Applicability only to resort hotels- Resort hotels are self-contained destinations that
provide for all travel accommodation needs in one location, including but not limited
to restaurants, bars, shopping, and recreational facilities. The trend in the hotel
industry is to also locate limited residential uses at a hotel property to create resort
amenities that can be shared by residents, visitors, and tourists alike. Therefore,
mixed-use hotels are a form of accommodation that affords buyers with access to
the full range of services, facilities, and amenities provided by the hotel.
• One -for -One Allowance- Approved hotel rooms will be allowed to convert to
residential uses on a one-for-one basis to ensure the accessory residential use
does not involve a greater level of activity, population density, traffic generation,
parking, dust, odor, noise, or similar impacts.
• Maximum Percentage of Development- The conversion of hotel rooms to
residential uses will be limited to no more than 30 percent of the total number of
approved hotel rooms. This restriction will further ensure that residential uses
remain an accessory use to the hotel and do not change the primary use of the
property from hotel to residential.
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Accessory Residential Units
Of the twenty-two (22) hotels in the City, only four (4) meet the parameters of being a resort
hotel located outside the Coastal Commission Appeal Jurisdiction area, and three (3) hotels
are located outside the coastal zone. The following table lists the four hotels that Policy K-4
and the Director's Determination apply to.
Table 1. Applicable Resort Hotel Properties in the City & Potential Yield
Hotel Name
Location
Approved
Hotel
Rooms
Maximum
Accessory
Residential
Renaissance Newport Beach
4500 MacArthur Blvd.
471
141
Fashion Island Hotel
690 Newport Center Dr.
295
88
Hyatt Regency John Wayne
Airport
4545 MacArthur Blvd.
349
104
Newport Beach Marriott
900 Newport Center Dr.
532
159
Maximum Accessory Units
492
The appeal suggests that since the potential dwelling unit yield could exceed 100 units,
which is the threshold requiring a vote of the electorate of an approved General Plan
Amendment pursuant to Charter Section 423, the interpretation is invalid. As noted
previously, the City Council has the authority to determine the meaning of the General Plan
consistent with applicable laws including the City Charter. The General Plan and the City
Charter do not provide limits on the scope of an interpretation nor do they provide any
specific provisions contrary to Council Policy K-4 or the Director's Determination.
The purpose of Charter Section 423 is to give the electorate the ability to vote to either
confirm or deny a City Council -approved General Plan Amendment that significantly
generates traffic resulting from increases in residential density or non-residential intensity
measured through a variety of metrics. The traffic generation associated with a residential
use is comparable to the traffic generation for a resort hotel use. According to the Institute
of Transportation Engineers Trip Generation Manual (10th Edition), a Multi -Family
Housing Mid -Rise (3 to 10 levels) development (ITE Code 22 1) would generate 0.36 and
0.44 average AM and PM weekday peak hour trips per dwelling unit. A Resort Hotel (ITE
Code 330) would generate 0.32 and 0.41 average AM and PM weekday peak hour trips
per room. The published ITE trip rates are generally for stand-alone development (e.g.
stand-alone hotel or multi -family housing buildings); however, the reality is accessory
residential dwelling units will have lower rates due to the additional on-site amenities
provided. Therefore, following conversion of a hotel room to a residential unit, the
anticipated traffic generation would be similar or lower. Based on the similar or lower
vehicular trips associated with accessory residential uses, levels of odor, dust, noise, or
similar impacts at a hotel property with accessory residential uses will be similar or less.
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As previously mentioned, the conversion of existing hotel units to accessory residential
units in compliance with Council Policy K-4 and the Director's Determination would not
require a General Plan Amendment. Charter Section 423 and Council Policy A-18 are
only applicable to General Plan Amendments and not conversions. Notwithstanding, the
Director's Determination limits the conversion of hotel rooms to residential uses on a one-
for-one basis and to no more than 30 percent of the total number of approved hotel rooms.
These limitations ensure the primary use is maintained and that the community would
remain protected from potential increases in traffic, consistent with the purposes of
Charter Section 423 and Council Policy A-18.
Concerns with Community Review of a Project
To ensure the public has an opportunity to participate in any review of potential development
taking advantage of the Director's Determination, a required parameter is that a property
owner shall, at a minimum, process a conditional use permit and coastal development permit
(if applicable). These permits would require review and approval by the Planning
Commission at a noticed public hearing. In reviewing said applications, the Planning
Commission, and City Council on appeal, would ensure site suitability, development
compatibility, and the appropriateness of the operational characteristics, including parking.
For projects in the coastal zone, the required coastal development permit would ensure a
project is reviewed for consistency with the City's Local Costal Program and protection of
coastal resources and public access.
Summary
Staff believes the appeal is not supported by the facts and should be denied. The City
Council and the Community Development Director have the authority to make the
interpretations provided in Council Policy K-4 under the City Charter, Municipal Code,
LCP and General Plan, and Director's Determination No. DD2021-001 is consistent
Council Policy K-4. Additionally, the determination interprets existing sections in the
General Plan, and does not amend the General Plan. Therefore, the determination does
not violate City Charter Section 423 and City Council Policy A-18 because they are only
applicable when there is a General Plan Amendment.
AltPrnnfivPc
If the Planning Commission believes that there are insufficient facts to support the findings
for the determination, the Planning Commission may reverse the Director's Determination
and provide facts in support of the reasons for the action on the appeal.
Environmental Review
This Director's Determination is not subject to the California Environmental Quality Act in
accordance with Section 21065 of the California Public Resources Code ("CEQA") and
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Sections 15060 (c)(2), 15060 (c)(3), and 15378 of the California Code of Regulations Title
14, Division 6, Chapter 3 ("CEQA Guidelines"). The Director's Determination is also
exempt pursuant to CEQA Guidelines Section 15061(b)(3), the general rule that CEQA
applies only when there is the potential for causing a significant effect on the environment.
While this Director's Determination would result in an interpretation that allows residential
uses as an accessory use to resort hotels, it does not authorize new development that
would directly result in physical change to the environment.
=M = 0INOTM
Notice of this hearing was published in the Daily Pilot, mailed to local agencies, persons
requesting notice, and the California Coastal Commission consistent with the provisions
of the Municipal Code. Additionally, the item appeared on the agenda for this meeting,
which was posted at City Hall and on the City website.
Prepared by: Submitted by:
Jarme Murillo Jim Campbell
Principal Planner Deputy Community Development Director
ATTACHMENTS
PC 1 Draft Resolution No. PC2021-016
PC 2 Council Policy K-4
PC 3 Director's Determination No. DD2021-001
PC 4 May 6, 2021, Planning Commission Staff Report
PC 5 Appeal filed by SPON
PC 6 Council Policy A-18 and Charter Section 423
10 21-93
ATTACHMENT H
July 8, 2021 Planning
Commission Minutes
21-94
Planning Commission Regular Meeting Minutes
July 8, 2021
NOES:
ABSTAIN:
ABSENT: Klaustermeier
V. PUBLIC COMMENTS
None
VI. REQUEST FOR CONTINUANCES
None
VII. CONSENT ITEMS
ITEM NO.2 MINUTES OF JUNE 3, 2021
Recommended Action: Approve and file
Motion made by Commissioner Koetting and seconded by Commissioner Rosene to approve the minutes of
the June 3, 2021 meeting as recommended.
AYES: Kleiman, Koetting, Rosene, and Weigand
NOES:
ABSTAIN: Ellmore, Lowrey
ABSENT: Klaustermeier
VIII. PUBLIC HEARING ITEMS
ITEM NO. 3 APPEAL OF INTERPRETATION ALLOWING ACCESSORY RESIDENTIAL WITHIN
RESORT HOTELS (PA2021-096)
Site Location: Various Resort Hotel Properties
Summary:
An appeal of the Community Development Director's determination, issued on April 30, 2021,
interpreting accessory residential as an allowed use within resort hotels. This determination is
consistent with City Council Policy K-4 (Reducing the Barriers to the Creation of Housing).
Recommended Action:
1. Conduct a de novo public hearing;
2. Find the Director's Determination is exempt from the California Environmentally Quality Act
(CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably
foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a
project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations,
Title 14, Division 6, Chapter 3, because it has no potential for resulting in physical change to the
environment, directly or indirectly. This Director's Determination is also exempt that CEQA
Guidelines Section 15061(b)(3), the general rule common sense exemption that CEQA applies
only when there is the potential for causing a significant effect on the environment; and
3. Adopt Resolution No. PC2021-016 denying an appeal and upholding the Community
Development Director's Determination No. DD2021-001, and associated findings.
Community Development Director Jurjis reported on March 9, 2021, the Council adopted Council Policy K-4 to
reduce barriers to the creation of housing in response to the City's extraordinary Regional Housing Needs
Assessment (RHNA) allocation and to assist the hotel industry with recovery from the pandemic. Council Policy
K-4 directs staff to draft new or modify existing regulations to encourage development of accessory dwelling units
(ADUs) and housing in mixed-use zones and resort hotels. COVID-19 impacted the hotel industry through
shelter -in-place orders and virtual meetings, and hotels' financial recovery may take a long time. The Newport
Beach Municipal Code authorizes the Community Development Director to interpret the Code and determine if
unlisted land uses are allowed. Consistent with Council Policy K-4, the Director's Determination interprets that
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a residential use may be viewed as an accessory use of a resort hotel subject to the resort hotel being located
outside the Coastal Commission's appeal area, conversion of rooms to residences on a 1:1 basis, a 30 percent
cap on the number of rooms converted to residences, approval of a conditional use permit (CUP) and coastal
development permit (CDP), adequate onsite parking, and a Development Agreement addressing public access,
affordable housing, and loss of transient occupancy tax (TOT) revenue.
Community Development Director Jurjis stated that Stop Polluting Our Newport (SPON) appealed the Director's
Determination alleging that it improperly converts General Plan -approved hotel allocations into General Plan -
approved dwelling units without Greenlight (Charter Section 423) tracking. Charter Section 423 states voter
approval is required for any major amendment of the Newport Beach General Plan. A major amendment
significantly increases the maximum amount of traffic that allowed uses could generate or significantly increases
allowed density or intensity. A Director's Determination is not a General Plan amendment and is not subject to
Charter Section 423. Converting a hotel unit to a residential unit does not increase traffic assumed in the General
Plan. Past examples of conversions approved by the City include the Newport Beach Country Club, which
converted 17 tennis courts into 27 hotel rooms with Planning Commission and City Council approval. Also, Villas
Fashion Island transferred and converted 79 hotel rooms to residential units with Planning Commission and City
Council approval. An example of a Director's Determination authorizing an unclassified use was when the
Director made an interpretation for the new Fire Station No. 2 site in the Commercial -Serving Visitors (CV) zone.
In response to Commissioner Koetting's questions, Community Development Director Jurjis advised that the
owner of a hotel pursuing development under the Director's Determination would apply for a CUP. The
Determination does not define the residential units as for sale or for rent. One hotel room would be allowed to
be converted to one residence, regardless of bedroom count. A residential unit is defined as having cooking
appliances and sleeping accommodations. A subdivision map will be needed for units that are intended to be
individually sold.
In reply to Commissioner Weigand's inquiry, Community Development Director Jurjis indicated that a hotel
wishing to convert rooms to residences will have to submit an application that is subject to the usual review
process and Planning Commission approval. A Development Agreement must be approved by the City Council.
In answer to Commissioner Rosene's query, Community Development Director Jurjis clarified that units will be
converted, not transferred. Staff tracks units in tables that are available to the public, and the units will be
recognized in the tracking tables. The units will not be officially converted until an application is approved.
Commissioner Rosene and Vice Chair Kleiman disclosed no ex -parte communications. Commissioner Koetting,
Secretary Ellmore and Chair Lowrey disclosed email communications with staff. Commissioner Weigand
disclosed communications with staff and members of the public.
Chair Lowrey opened the public hearing.
Michelle Black, representing the appellant SPON, explained that the Director's Determination is a change in
definition, not an interpretation of an ambiguity, and exceeds the Director's authority. The Determination requires
a General Plan amendment, avoids the Greenlight initiative by authorizing previously unplanned and unapproved
residential units without a vote, and conflicts with the Local Coastal Program (LCP) Implementation Plan (IP).
State law and the City's Charter and Code provide that the General Plan is the constitution for future
development. The primacy of the General Plan and its planning assumptions and mitigations are meaningless
if the words of the General Plan, Zoning Code, and Local Coastal Program may be interpreted in ways that
conflict with their intended meanings, as the Director's Determination does. Interpretation of the Municipal Code
is permitted but is only necessary when there is ambiguity. Titles 20 and 21 provide that hotels are for transient
guests, which is not ambiguous. Interpreting transient to mean permanent is not reasonable. The City may
redefine hotels to permit residential uses through established planning processes. Following planning processes
would ensure that the City's actions to increase housing supply actually supply affordable housing. It appears
unlikely that allowing residential uses in resort hotels would provide affordable housing. The staff report alleges
that the Greenlight initiative applies to General Plan amendments only, and the allowance of more than 100 new
residential units does not trigger Greenlight. However, as recently as February 2021, staff has stated publicly
that adding residential uses to hotels would require a General Plan amendment and an LCP amendment. Staff
is proposing Code amendments for ADUs and should do the same to address the conversion of hotel units to
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residential units. The Director's Determination would permit approximately 250 units in the Airport Area and
Newport Center, but 250 units do not remain in Newport Center. Without a vote of the people to authorize more
units, the action violates the City's Charter. The City has previously converted units, and SPON has objected.
SPON's decision not to litigate those projects does not mean the prior conversion was legal. The LCP IP prohibits
the conversion of hotel rooms. The Director's Determination cannot be implemented without approval of the
Coastal Commission. The City cannot make the findings to support the Determination.
Gary Sherwin, Newport Beach & Company and Visit Newport Beach President and CEO, supported the
Director's Determination. Mixed-use hotels are an established trend within the hospitality industry. Without
residential units, most hotel projects would have difficulty obtaining financing. The Director's Determination
recognizes this trend.
Jim Mosher remarked that density refers to the number of residences, and the Director's Determination changes
density. The General Plan does not prohibit conversions, and it does not allow conversions. The Deputy
Community Development Director wrote a memorandum indicating that tennis courts could not be converted to
hotel rooms. Staff previously presented to the Council a resolution initiating amendments to the General Plan,
LCP, Zoning Code, and the IP to allow many kinds of creative land uses including conversions. After finding
ambiguities, staff now finds they did not need the amendments. Designating a cap of 30 percent is legislation
requiring an amendment.
David Tanner commented that the conversion of hotel units should be a part of the General Plan Update.
Environmental concerns in addition to traffic have not been presented to the Planning Commission or the public.
Converting hotel rooms and allowing new hotel rooms to be built elsewhere have not been evaluated. The
applicability of the Director's Determination to the non -appealable areas of the LCP is a clear attempt to
circumvent the LCP, Coastal Commission, and his decision-making authority. He recommended the Planning
Commission direct staff to request a Coastal Commission Executive Director interpretation.
Seeing no one else wishing to provide comments, Chair Lowrey closed the public hearing.
In reply to Vice Chair Kleiman's queries, Community Development Director Jurjis indicated properties affected
by the Director's Determination are not located in areas where short-term lodging permits are allowed. A number
of residences across the City do not house permanent residents. Nothing in the General Plan or Municipal Code
requires residences to house residents on a permanent basis. The Director's Determination is not an entitlement.
It adds residential to the list of potential accessory uses to hotels. Conversion of hotel units will be subject to the
planning and entitlement process. Review of a conversion project will include a review of all environmental
impacts. Deputy Community Development Director Jim Campbell added that the Regional Housing Needs
Assessment (RHNA) allocation for the City results in a housing need of 1,456 units for very low income, 930
units for low income, 1,050 units for moderate income, and 1,409 units for above moderate income. The four
properties eligible for conversion of units could provide 492 residential units.
In answer to Commissioner Rosene's questions, Deputy Community Development Director Campbell advised
that Council Policy K-4 has not yet been incorporated into the Housing Element Update. Community
Development Director Jurjis explained that the General Plan Update is a three-year process, while the Director's
Determination takes effect immediately and applies to only four resort hotels. Three of the hotels have some
interest in converting units.
Secretary Ellmore indicated his belief that Council Policy K-4 limits the Planning Commission's authority to
determining whether the Director's Determination complies with Policy K-4.
Motion made by Commissioner Rosene and seconded by Secretary Ellmore to approve the staff
recommendation.
AYES: Ellmore, Kleiman, Koetting, Lowrey, Rosene, Weigand
NOES:
RECUSED:
ABSENT: Klaustermeier
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ATTACHMENT I
SPON Appeal
21-98
Appeal Application
City Clerk's Office
100 Civic Center Drive / P.O. Box 1768
Newport Beach, CA 92658-8915
949-644-3005
Clerk's Date & Time Stamp
R 'rtEIV E 0
2021 JUL 22 PM 2`09
c;
ATTACHMENT J
Chatten-Brown
Letter
21-100
Planning Commission - July 8, 2021
Item No. 3a - Additional Materials Received
Appeal of Interpretation Allowing Accessory Residential withing Resort Hotels
(SBC
Hermosa Beach Office Chatten-Brown, Carstens & Minteer LLP
Phone: (310) 798-2400
San Diego Office 2200 Pacific Coast Highway, Suite 318
Phone: (858) 999-0070 Hermosa Beach, CA 90254
Phone: (619) 940-4522 www.cbcearthlaw.com
July 7, 2021
By U.S. Mail and Email: jmurillo@newportbeachca.gov
sjurjis@newportbeachca.gov
planningcommissioners@newportbeachca.gov
Planning Commission
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Michelle Black
Email Address:
mnb@cbcearthlaw. com
Direct Dial:
310-798-2400 Ext. 5
Re: July 8, 2021 Agenda Item #VIII, Public Hearing Item #3
Appeal of Project No. PA2021-096 and Activity No. DD2021-01
Director's Determination Interpreting Accessory Residential as
Allowed Use within Resort Hotels
Honorable Commissioners,
These comments are submitted on behalf of Stop Polluting Our Newport (SPON)
in connection with its May 14, 2021 appeal of the Community Development Director's
April 30, 2021 issuance of a determination that residential uses are allowable as an
accessory use to resort hotels ("Director's Determination" or "Interpretation"). The
Director's Interpretation allows approximately 250 new dwelling units in both the Airport
and Newport Center Areas without first holding a vote of the people as required by City
Charter section 423. Although SPON takes no position on the propriety of converting
hotel rooms to dwelling units, it does take issue with the City's failure to comply with its
own charter. The City's local coastal program prohibits the conversion of much-needed
hotel rooms in the entire coastal zone, not just the appealable area, so the Interpretation's
proposed exclusion of hotels in the Coastal Zone's appealable area does not save it from
violating the Coastal Act. Finally, the City has already begun a General Plan update
process designed to meet the Regional Housing Needs Allocation (RHNA). City actions
to incentivize the creation of housing can and should occur as part of this ongoing
process.
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July 7, 2021
Page 2
I. Conversion of Hotel Rooms Into Dwelling Units Requires a General Plan
Amendment.
The Director's Determination claims to implement City Council Policy K-4
(Reducing the Barriers to the Creation of Housing), which the City Council adopted on
March 9, 2021 to address the 6' Cycle Regional Housing Needs Allocation (RHNA).
The Policy calls for "interpreting ambiguities in the City's General Plan, Coastal Land
Use Plan, Title 20 (Planning and Zoning) and Title 21 (Local Coastal Program
Implementation Plan) of the Newport Beach Municipal Code ("NBMC") to allow hotels
and motels, located outside of the Coastal Commission Appeal Jurisdiction, to convert up
to 30 percent of their approved hotel rooms into residential units on a one-for-one basis."
(Staff Report, p. 3.) Under this interpretation, "residential units [could] be deemed an
accessory use to the principal use of a hotel and find that such residential uses are
consistent with the hotel's and motel's underlying General Plan, Zoning Code, and Local
Coastal Plan Program land use and zoning designations." (Ibid.)
The Planning Department claims that this is permissible because:
Title 20 and Title 21 include a definition of hotel that is out of date and does not
reflect current industry practice. Specifically, the definition of `hotel' has not been
updated to designate residential uses as an accessory use, which has become
common practice for destination resort hotels (mixed-use hotels). While the
definition of a hotel does not prohibit residential uses, a Director's Determination
is necessary to fill the gap between contemporary practice and the exact wording
of Title 20 and Title 21.
(Staff Report, p. 4.)
In reality, the definitions of hotel in Titles 20 and 21 do prohibit residential use.
As the Staff Report reprints for convenience, "hotel" is defined as:
[A]n establishment that provides guest rooms or suites for a fee to transient guests
for sleeping purposes. Access to units is primarily from interior lobbies, courts, or
halls. Related accessory uses may include conference rooms and meeting rooms,
restaurants, bars, and recreational facilities. Guest rooms may or may not contain
kitchen facilities for food preparation. Hotels with kitchen facilities are commonly
known as extended stay hotels. A hotel operates subject to taxation under
California Revenue and Taxation Code Section 7280.
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Page 3
(Staff Report, p. 3, emphasis added.) Permanent residents are not "transient guests."
They are the exact opposite of transient. Thus, the Director's action is more than a mere
reinterpretation; it changes the definition of "hotel" as used in the City's General Plan,
Coastal Land Use Plan, Title 20 (Planning and Zoning) and Title 21 (Local Coastal
Program Implementation Plan) of the Newport Beach Municipal Code ("NBMC"). By
allowing permanent residents where only transient guests have been permitted in the past,
the Director's Determination essentially rewrites all of the land use plans and allowable
uses for areas that contain hotels and motels. If, in fact, standard hotel practice has
changed such that there is a "gap between contemporary practice and the exact wording"
of the Code, this gap should be filled by amending the code, through the City's standard
planning, administrative, and review processes.
While the proposed Interpretation applies only to resort hotels outside of the
Coastal Commission's appeal jurisdiction, it sets a precedent that redefines hotels and
motels as residential throughout the City without the review, analysis, or election
required by the City Charter, California Environmental Quality Act, and Coastal Act.
Given that the General Plan limit for Newport Center hotel rooms is 827 rooms
and that the limit for the Airport Area is 820 rooms, the conversion of 30 percent of these
rooms to residential uses could add close to 250 residences to each area.
Recognizing the gravity of this redefinition, the Planning Department has declined
this interpretation in the past. Specifically, in 2011, the now Deputy Director determined
that allowing conversions of other uses in hotels and motels would require a General Plan
Amendment as well as a Local Coastal Program Amendment. (Attachment 1). While
entitlements could be moved within the City, they could not be redefined. On February
9, 2021, Community Development Department Director Jurjis stated that repurposing
underutilized hotel space as residences would require amendment of the City's General
Plan and Local Coastal Program. (Attachment 2.) The Department believed this type of
action required a General Plan Amendment in 2011 and again in February of this year.
The same action requires a General Plan Amendment now.
Moreover, in 2006, a similar interpretation was requested by the Irvine Company.
The City explicitly rejected the transfer or conversion of hotel uses to residential uses at
that time. (Attachments 3 and Link 4.)
The City must respect the integrity of its planning documents. Newport Beach's
General Plan is the constitution for future developments. (De Vita v. County of Napa
(1995) 9 Cal.4th 763, 773.) The Director's Determination sets a dangerous precedent for
redefining long-established land uses on a whim, thereby eviscerating the primacy of the
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City's Charter, Code, and General Plan elements. If the City permits this Interpretation
to "fill a gap" between what it wishes to do and what the Code allows, it will be much
more difficult for the City to justify later requests for "interpretations" that the City does
not wish to grant. This erodes the predictability of land use decisions on which orderly
development and investment in the City are based. Moreover, if the Director may
"interpret" a word in the Code to mean its exact opposite, there is no end to this
authority. The City's well -thought-out plans, created with extensive public participation
and comprehensive planning, are essentially meaningless. Further, by ostensibly
applying this redefinition to only four sites in the City, the Interpretation smacks of spot -
zoning, the "very antithesis" of organized land use planning. (Citizens of Goleta Valley
v. Board of Supervisors (1990) 52 Cal.3d 553, 572 -573.)
Conveniently, the City is already in the process of updating its General Plan and
Housing Element to meet the 6' Cycle RHNA. If the City wishes to add residential uses
to its hotel land uses, there is no reason it cannot do so as part of that ongoing,
comprehensive process. Consideration of this redefinition as part of the Housing
Element and General Plan updates and the upcoming Land Use Element revision would
ensure that the policy is stronger, clearer, and focused on the provision of affordable
housing.
II. The Director's Determination Adds More Than 100 Dwelling Units and
Triggers the Greenlight Provisions of City Charter Section 423.
The City's Greenlight Initiative, Section 423 of the City Charter, requires a public
vote whenever new development would add 100 dwelling units when the change would
require a General Plan amendment. As discussed above, until recently, the City Planning
Director has maintained that conversions of hotel rooms to other uses require an
amendment to the General Plan. The General Plan currently limits Newport Center to
827 hotel rooms. The Airport Area is currently limited to 820 hotel rooms. The
Director's Interpretation would permit the conversion of approximately 250 rooms into
previously unplanned residences in each area. In Newport Center, 248 new rooms would
trigger the Greenlight Initiative's requirement of a public vote, as Greenlight Tracking
shows the Council has authority to add only 28 new residential units without a vote. In
the Airport Area, the conversion would be subject to Greenlight tracking, and potentially
to a public vote.
The July 8 Planning Commission Staff Report attempts to ignore the applicability
of the Greenlight Initiative and City Charter completely. (Staff Report, pp. 4-5.) The
Staff Report claims that the City Council vested the Director with the authority to make
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July 7, 2021
Page 5
the interpretation permitting residential uses accessory to hotel uses. However, the City
Charter specifically limits the City Council and the City's officers to actions permitted by
that Charter. (Section 200.) Nothing in the Charter permits the City to ignore Charter
Section 423.
On the contrary, the City Charter of Newport Beach has provided residents the
ability to limit the authority of the City Council. Residents have limited how much the
City Council can increase development within certain areas, and the Council is bound to
honor those limits. In 2006, City voters approved defined numbers of hotel rooms at
each of the anomaly sites that would be affected by the Director's Determination. While
the Greenlight Initiative grants the Council some latitude to add to those rooms, it does
not provide authority to convert those rooms to other uses.
The Staff Report fails to point to anything in the Charter that permits the City to
reinterpret a word to mean its opposite in the name of ambiguity. There is no ambiguity
in the City's existing definitions of hotel. Nor is there any ambiguity that allows a
"Transient guest" to become a "permanent resident" through interpretation alone. Basic
tenets of statutory interpretation require starting "with the language of each statute,
giving the words their usual and ordinary meaning, and construe the statutory language in
the context of the statute as a whole and the overall statutory scheme, giving significance
to every word, phrase, sentence, and part of an act." (Lincoln Place Tenants Assn. v. City
of Los Angeles (2007) 155 Cal.App.4th 425, 440-441.) The Staff Report opines, "The
General Plan and City Charter do not provide limits on the scope of an interpretation nor
do they provide any specific provisions contrary to Council Policy K-4 or the Director's
Determination." (Staff Report, p. 8.) Case law provides that interpretations should
"endeavor to promote rather than defeat the statute's general purpose, and avoid a
construction that would lead to absurd consequences." (Ibid.) The Interpretation leads to
an absurd result and cannot be upheld.
It is clear that the City seeks a change in the definition of "hotel" in its land use
planning to allow residential uses in certain circumstances. SPON has no position on the
propriety of this goal. But, if the City desires to make this change, it should do so
through its normal planning channels.
The Staff Report also relies on the fact that because the Director's Determination
was intended to implement Council Policy K-4, which is not a General Plan amendment,
the Greenlight Initiative does not apply. (Staff Report, p. 6.) It is true that Council
Policy K-4 and the Director's Determination are not General Plan Amendments, but
SPON's central argument is that the changes made by these enactments required General
Plan Amendments. The Planning Director previously agreed. Instead, it appears that the
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Page 6
enactments may have occurred outside of the General Plan Amendment context precisely
to avoid the requirements of the Greenlight Initiative. The fire station example is not 100
units of residential use and is irrelevant here.
Accordingly, the City's acceptance of the Director's Determination, without full
consideration of the implications of the Greenlight Initiative and the initiation of a vote of
the people regarding the authorization of new Newport Center residential units beyond
the current allowance, violates the City Charter which the City's departments and officers
are bound to uphold. Charter Section 200 provides, "The City shall have the power to
make and enforce all laws, rules and regulations in respect to municipal affairs, subject
only to such restrictions and limitations as may be provided in this Charter or in the
Constitution of the State of California." The Director's Determination exceeds the City's
Charter authority.
III. The City's Local Coastal Program Does Not Permit the Conversion of
Hotel Rooms into Dwelling Units.
As enshrined in Article X, Section 4 of the California Constitution and Coastal Act
section 30210, the City must provide the public "maximum access" to coastal resources.
Coastal Act sections 30222, 30213 and others protect the City's stock of coastal zone
hotel rooms. Section 30222 explicitly prioritizes hotel uses over residential uses in the
coastal zone, stating, "The use of private lands suitable for visitor -serving commercial
recreational facilities designed to enhance public opportunities for coastal recreation shall
have priority over private residential..." Specifically, the City's Local Coastal Program
Implementation Plan outright prohibits the conversion of hotel rooms existing on or
before July 14, 2009 to other uses. (See 21.48.025D.)
The Director's Determination attempts to avoid the Coastal Act by limiting the
affected properties to resorts outside of the Coastal Commission's appellate jurisdiction.
Although outside of the reach of an appeal, the Newport Beach Marriot remains located
within the coastal zone, and its rooms remain subject to the protection provided by the
LCP Implementation Plan. Yet, the Director's Determination permits conversion of these
hotel rooms to residential uses in violation of the Implementation Plan. The City is not
even permitted to make this Determination without first applying for a Local Coastal
Program Amendment and obtaining subsequent certification by the California Coastal
Commission. As proposed, the Director's Determination with respect to the Newport
Beach Marriot violates the Coastal Act in addition to the City's LCP and Title 21.
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Page 7
IV. The City Cannot Make the Findings for the Director's Determination
Required By Title 20 and Title 21 of the City's Municipal Code.
Even if the Director's Interpretation is lawful, which SPON disputes, the City
cannot make the findings required for approval. NBMC 20.12.020E requires several
findings to be made and supported by substantial evidence before the Director may allow
a land use that is not explicitly listed in the Code. The City lacks substantial evidence in
support of several findings required to add residential uses as an accessory to hotel uses.
For example, the Director must find that "the characteristics of, and activities
associated with, the proposed use are equivalent to those of one or more of the [allowed
uses], and will not involve a greater level of ... parking ... than the uses listed in the
zoning district." (Finding A.) Without support, the Staff Report claims that hotel
accessory uses such as conference rooms generate parking demand "substantially higher"
than residential parking rates. Yet, most families that are traveling share a single rental
car — if they rent one at all. A family that lives in a condominium unit is likely to have
several vehicles — likely two or three. Claiming that a future CUP amendment process
will ensure enough parking through "surplus parking, shared parking, or the adoption of a
parking management plan," without any specific requirements, does not provide
substantial evidence that parking will not be impacted. This finding cannot be made.
By redefining "hotel" to include permanent residents, the Interpretation also does
not support the goals, objectives, and policies of the General Plan and existing Local
Coastal Program. (Finding C.) Residential uses are listed as allowable in other zoning
districts, and therefore the City cannot support the finding that "The proposed use is not
listed as allowable in another zoning district." (Finding D.) Finding E, that the proposed
use is not prohibited, cannot be made because "hotel" is defined as permitting "transient"
residents only. Permanent residents are not transient. They are the opposite of transient.
Regarding the Local Coastal Program, Coastal Act sections 30222 and 30123
require the protection of visitor -serving accommodations. More explicitly, the LCP
prohibits the conversion of hotel rooms to other uses. The conversion of over a hundred
hotel rooms, as the Commission addresses an overall loss of hotel rooms in the Coastal
Zone, counters this purpose of the LCP and the Act and violates the Coastal Act.
Conclusion
Thank you for your consideration of these comments. By effectively allowing a
staff member to amend the City's General Plan without a vote of the people, or any
environmental review of the addition of 247 dwelling units to statistical area Ll, the
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July 7, 2021
Page 8
Director's Determination violates the Greenlight provisions of the City Charter, CEQA,
and the California Coastal Act. Perhaps more importantly, the Director's Determination
is improperly siloed from an already -ongoing General Plan update process already
focused on increasing housing availability in the City. For example, there is no reason to
expect that residences provided in resort hotels will serve people in need of affordable
housing. Segmentation of these processes is both inefficient and jeopardizes the
coherence of the City's housing strategy going forward. The City cannot endorse
reinterpretations of words such that they mean their opposites. SPON urges the City to
accept its appeal, reject the Director's Determination, and pursue any necessary changes
to the City's governing documents and policies through established planning processes.
Sincerely,
l
Michelle Blac on ehalf of SPON
Attachments:
1. November 9, 2011 Staff Report from Deputy Director Campbell, available at
https:Hecms.newportbeachca.gov/Web/O/doc/763 63 /Page480. aspx
2. Slide 9, February 9, 2021 City Council Study Session, available at
https:Hecros.newportbeachca.gov/Web/O/doc/2662725/Pa eg 9.aspx; accompanying
video of Director Jurjis available at https://www.youtube.com/watch?yfg
3. June 27, 2006 Staff Report, Item 33, P. 3, available at
https:Hecros.newportbeachca. gov/Web/DocView.aspx?dbid=0&id=71656&pie=
3&cr=1
4. Link to June 27, 2006 City Council Meeting. Relevant discussion begins around
minute 3:59:00, available at
http://newportbeach.granicus.com/MediaPlqyer.php?publish id=904a2417-7379-
I I e5-8l70-fO4da2O64c47
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Attachment 1
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Item No. 3a - Additional Materials Received
Appeal of Interpretation Allowing Accessory Residential withing Resort Hotels
City of Newport Beach
Community Development Department
Planning Division
Memorandum
To: Planning Commission
From: James Campbell, Principal Planner / �1it�c�wni
Date: November 9, 2011
Re: Newport Beach Country Club — Golf Realty Fund Application
Conversion of Tennis Courts to Hotel Rooms
General Plan Consistency Determination
During the October 20, 2011, hearing on the project, the owner of the Marriott Hotel
property, Host Hotels and Resorts ("Host"), proposed a "use conversion solution" as an
alternative to the applicant's request for a transfer of development intensity. The alternative
approach is based upon the assumption that the eliminated tennis courts' have a
development intensity that can be converted to hotel rooms or building floor area. Host
asserts that sufficient traffic capacity exists, that there is no limit to the number of hotel
rooms in Statistical Area L1 (Newport Center), the conversion would not set a precedent, and
there is no apparent constraint on conversion to a building (floor area). Although traffic is not
an issue, staff does not believe the conversion of tennis courts to building floor area is
consistent with the General Plan, the basis of staff's conclusion is described below.
Traffic
The applicant's proposed 27 -room hotel generates fewer average daily trips and peak hour
trips than the traffic trips attributable to the 17 tennis courts that would be eliminated'. The
net effect is an overall reduction of trips and the avoidance of any significant traffic impact2.
Staff concurs that the conversion of tennis courts to hotel rooms would not create a traffic
impact and no mitigation would be necessary.
Traffic and Parking Analysis for Newport Beach County Club, Clubhouse Improvement and Tennis
Improvement project, Kimly-Horn and Associates, August 2009.
z Initial Study/Mitigated Negative Declaration for the Newport Beach County Club (PA2005-140), Keeton
Kreitzer Consulting , September 2010.
1
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Item No. 3a - Additional Materials Received
Appeal of Interpretation Allowing Accessory Residential withing Resort Hotels
November 9, 2011
Hotel Limit within Statistical Area L1 (Newport Center)
Host states that there is no overall General Plan limit to hotel rooms within Newport Center;
however, staff believes that this assertion is only partially correct, because the construction of
any new hotel rooms must be consistent with the overall non-residential development
intensity established for Newport Center. There are two sites within Newport Center that
have a specific allocation for hotel rooms; the Marriot Hotel property and the Island Hotel
property. The MU -H3 land use category also provides an additional 65 rooms. Despite these
specific allocations, other commercial sites within Newport Center are allowed to construct
hotels provided the zoning or planned community development regulations permit hotels and
the property has building floor area that is sufficient to accommodate the proposed hotel.
Precedent
The project site is within Anomaly Location 446, which specifically calls out a limit of 24 tennis
courts and 3,725 square feet of building area. Staff believes the proposed conversion would
set a precedent for other property since the conversion would create building floor area that
is not provided in this Anomaly Location by the Land Use Element, as discussed further below.
No Constraint to Conversion of Tennis Courts to Floor Area
Staff disagrees with Host's assertion that there is no constraint to converting tennis courts to
hotel rooms or building floor area. General Plan Land Use Element Policy LU4.1 establishes
maximum development intensities3 through the Land Use Maps (Figures LU1 through LU15),
specific land use categories (Table LU1), and the Anomaly Table (LU2). Development of the
project must be consistent with the site's land use classification and may not exceed
applicable development intensity limits.4 However, Policies LU4.3 and 6.14.3 allow for
transfers of development intensity from one site to another within a Statistical Area provided
the intent of the General Plan is maintained and there are no traffic impacts as a result. In the
simplest terms, a recipient site may exceed its specified development intensity limit to the
extent that the donor site is reduced to ensure that the total development intensity of the
3 Development intensity identified by Policy LU4.1 are maximum limits for development and cannot be
considered an "entitlement" until a vested right is conveyed either through a Development Agreement or
entitlement approval and construction. Development is subject to other applicable policies of the General
Plan and Municipal Code as well as other applicable government regulations.
4 LU4.1 establishes maximum non-residential development intensities in five (5) ways; 1) floor area, 2)
floor area ratios, 3) hotel rooms, 4) theater seats, and 5) tennis courts.
Oq
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Item No. 3a - Additional Materials Received
Appeal of Interpretation Allowing Accessory Residential withing Resort Hotels
November 9, 2011
larger Statistical Area is not exceeded. Statistical Area L1 represents Newport Center and
includes the project site.
The Tennis Club portion of the project site is classified "MU-H3/PR" by the Land Use Maps.
The dual classification allows uses and development limits specified by both the MU -H3 and
PR classifications. The MU -1-13 classification allows for the horizontal intermixing of regional
commercial office, hotel, multi -family residential and ancillary commercial uses. Within the
project site, residential uses may be developed as single family units, but must be allocated to
the Anomaly Location through the approval of a Site Development Plan or Development
Agreement. A maximum of 65 hotel rooms and 450 residential units are allocated to the
various properties designated MU -H3 within Newport Center in addition to those
development intensities specified in Table LU25. The PR designation applies to land used or
proposed for active public or private recreational use. Permitted uses include parks (both
active and passive), golf courses, marina support facilities, aquatic facilities, tennis clubs and
courts, private recreation, and similar facilities. There is no applicable maximum density or
intensity limit of for public uses. Private uses in this category may include incidental buildings,
such as maintenance equipment sheds, supply storage, and restrooms, not included in
determining intensity limits. For golf courses, these uses may also include support facilities for
grounds maintenance employees. "Other types of buildings and developments are limited as
specified in Table LU2."
Table LU2 establishes two maximum development limits for the project site (Anomaly
Location #46):
1) 3,725 gross floor area (GFA) and
2) 24 tennis courts.
These development limits reflect the existing "built" condition of the Newport Beach Tennis
Club.
Conclusion
In summary, staff believes the proposal to convert eliminated tennis courts to hotel rooms or
building floor area does not create a traffic impact; however the proposed conversion does
The 65 hotel rooms and 430 residential units were entitled to the Irvine Company with the adoption of
Development Agreement No. DA2007-002 and allocated within the North Newport Planned Community,
and therefore, zero hotel rooms and 20 residential units remain for entitlement to any property classified
MU -H3.
3
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Planning Commission - July 8, 2021
Item No. 3a - Additional Materials Received
Appeal of Interpretation Allowing Accessory Residential withing Resort Hotels
November 9, 2011
increase development intensity above the limit established by the General Plan for Anomaly
Location #46. The proposed 3,725 GFA tennis clubhouse is expressly allowed in Table LU2 and
the proposed 5 -single family homes are expressly allowed by the MU -H3 land use category
provided in Table LU -1 of the General Plan. The General Plan allows the proposed transfer of
27 hotel rooms through approval of a transfer of development intensity, and the applicant
has duly filed such an application
Staff believes that the only other appropriate alternative to allow the 27 hotel rooms to be
constructed in Anomaly Location #46 is through the review and approval of a General Plan
Amendment.
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Item No. 3a - Additional Materials Received
Appeal of Interpretation Allowing Accessory Residential withing Resort Hotels
Attachment 2
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Appeal of Interpretation Allowing Accessory Residential withing Resort Hotels
Land Uses - COVID & RHNA
Some owners have reached out to staff discussing
repositioning their properties.
2. Underperforming uses such as Office & Hotel
3. Recovery time for some uses is long -
When will once vacancy return to preCOVID?
When will international tourism fully recover?
4. The City has an immediate need for housing
opportunity sites ^db
➢ Initiate a General Plan Amendment
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Item No. 3a - Additional Materials Received
Appeal of Interpretation Allowing Accessory Residential withing Resort Hotels
Attachment 3
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Item No. 3a - Additional Materials Received
Appeal of Interpretation Allowing Accessory Residential withing Resort Hotels
General Plan Update
June 27, 2006
Page 3
This approach raises the question of whether a maximum of four residential villages is
appropriate. Ideas that were considered included deleting the maximum number of
villages, but adding a minimum village size of 10 acres, adding a fifth village that would
encompass the Koll residential opportunity sites, maintaining the current maximum of
four, or reducing the maximum number of villages. Staff will be working with the
property owners and the consultant team on both of these issues.
Newport Center Hotel Room Conversion Policy
The Planning Commission, during their discussion on the proposed policy relating to
conversion of future hotel rooms to residential entitlement in Newport Center,
recommended that Development Agreements be required for such conversions. The
purpose would be to consider the potential loss of Transient Occupancy Tax (TOT) that
would result from such a conversion, and to require some form of revenue replacement,
if appropriate. The new language is shown underlined below. .
LU Conversion of Hotel Rooms
Consider the conversion of hotel entitlement to residential entitlement when it is
demonstrated that no additional vehicle trips will result from the conversion.
Hotel rooms existing at the time of adoption of this plan may not be converted
to residential use. Require the execution of Development Agreements for the
conversion of hotel rooms to residential entitlement to d line the public benefits
to be provided by the developer in exchange for any loss of revenue resultin
from the conversion.
West Newport Residential Seashore/Oceanfront
Staff has been contacted by some property owners who oppose changing the
designation of existing R-2 properties to R-1. Additionally, the Planning Commission
had two persons testify at the June 22"d meeting expressing strong opposition to this
possibility.
Harbor Day School
The Planning Commission reviewed the request to increase the permitted floor area
ratio for this property, concluding that the increase was appropriate so long as adequate
parking and on-site circulation was provided. These issues can be addressed in
subsequent Use Permit amendments which would be required for additional
development at the school.
Land Use Categories Table and Map
The Planning Commission reviewed the proposed land use category system and map
presented to Council in the main report prepared for this meeting. The Commission paid
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ATTACHMENT K
Council Policy A-1 8
and Charter Section
423
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GUIDELINES FOR IMPLEMENTING CHARTER SECTION 423
Introduction
On November 7, 2000, the Newport Beach electorate approved Measure S (Exhibit A).
Measure S amended the Newport Beach City Charter by adding Section 423. In general
terms, Section 423 requires voter approval of certain amendments of the Newport Beach
General Plan (General Plan). Measure S "encourages' the City Council to adopt
implementing guidelines that are consistent with its purpose and intent. The City Council
has, consistent with Measure S, conducted a series of public meetings to receive input
from the public on Measure S and these Guidelines. The City Council has determined,
based on staff analysis and public input, that these Guidelines are consistent with the
express purpose of Measure S.
On November 6, 2006, the Newport Beach electorate approved Measure V, a
comprehensive update and amendment of the General Plan Land Use Element. The Land
Use Element approved by Measure V presents land use entitlement information in new
tables and maps, and regulates non-residential entitlement by floor area ratio (FAR)
differently than the Land Use Element that was in effect when Measure S was approved.
The City Council has determined, based on staff analysis and public input, that these
Guidelines, as amended for consistency with the 2006 Land Use Element, are consistent
with the purpose of Measure S.
Definitions
The definitions and terms in this section are intended to be consistent with the purpose
and intent of Measure S. Certain definitions and terms are intended to generally conform
to the definitions in, and terminology of, the most current edition of "Trip Generation," a
multi -volume publication of the Institute of Transportation Engineers (ITE Manual). The
ITE Manual is the primary reference used by transportation professionals seeking trip
generation information. Measure S requires use of the ITE Manual as a basis for
calculating the Peak Hour Trips generated by a use permitted by an Amendment.
A. Allowed and Proposed Use. The term "allowed use" means any land use(s)
permitted by the General Plan on property or in an area. An allowed use may be
defined in terms of a residential use and/or a non-residential use generally
applicable to an area or property or a particular land use applicable to specific
parcel. A "proposed use" is a land use that would be permitted after an
Amendment is approved.
B. Amendment. The word "Amendment" means any proposed amendment of the
General Plan that is first considered and/or approved by the City Council
subsequent to December 15, 2000 and that increases the number of peak hour trips,
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(traffic,) floor area (intensity) or dwelling units (density) when compared to the
General Plan prior to approval. In all cases an Amendment shall state the proposed
entitlement in density and/or intensity and, in the case of intensity, the category of
non-residential use.
C. Approval. The word "approve" (and any variations such as approved or approval)
means, in the context of the City Council's decision on an Amendment, that four
members of the City Council have, after the City has complied with the
"mandatory procedures" described in Section A under Procedures, voted
affirmatively to adopt a resolution that contains the text of a proposed
Amendment. In the context of the voters' decision on an Amendment, the word
"approve" (and any variations such as approved or approval) means that a
majority of those voting in the election have voted in favor of the Amendment.
D. Dwelling Unit. The term "dwelling unit" means "dwelling unit" as defined in
Section 20.03.030 of the Newport Beach Municipal Code (Code).
E. Entitlement. The word "entitlement" means the maximum amount of floor area or
dwelling units authorized by the General Plan for each allowed use on any
property and/or in any area. The term entitlement when preceded by the word
"proposed" shall mean the entitlement requested by an Amendment. Proposed
Amendments for parcels or areas entitled for special uses shall, when considered
by the Planning Commission and City Council and when submitted to the voters,
describe the proposed entitlement in both floor area and the appropriate unit of
measurement for that special use as utilized in the Trip Rate Table.
F. Floor Area. The term "floor area" shall be defined as follows (taken from Section
20.03.030 of the Code - "Floor area, gross"):
"The total enclosed area of all floors of a building measured to the outside face of
the structural members in exterior walls, and including halls, stairways, elevator
shafts at each floor level, service and mechanical equipment rooms, and basement
or attic areas having a height of more than seven feet."
G. Non-residential Use. The term non-residential use means any land use other than a
residential use that is authorized by the General Plan and that generates any peak
hour trips. The term non-residential use includes the land uses specified in
Sections 20.05.040 (public and semi-public), 20.05.050 (commercial), 20.05.060
(industrial) and 20.05.070 (agriculture) of the Zoning Code. For the purposes of
these Guidelines, and specifically the Trip Rate Table, the non-residential use
categories are: (1) "Commercial" (which includes the General Plan designations of
"Neighborhood Commercial", "Corridor Commercial", "General Commercial",
"Visitor Serving Commercial""Recreational and Marine Commercial" and
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"Regional Commercial"); (2) "Commercial Office" (which includes the General
Plan designations of "General Commercial Office", "Medical Commercial Office"
and "Regional Commercial Office"); (3) "General Industrial";(4) "Airport Office
and Supporting" (5) the non-residential portions of "Mixed Use" categories; and
(6) "Public, Semi Public & Institutional" (which includes the General Plan
designations of "Public Facilities", "Private Institutions", "Open Space", "Parks and
Recreation" and "Tidelands and Submerged Lands").
H. Peak Hour Trips. The term "peak hour trips" means the number of vehicle trips
equal to the applicable peak hour trip rate specified in the Trip Rate Table (Exhibit
B) for any allowed use or proposed use multiplied by the entitlement (using the
appropriate quantity of the relevant "unit" of measurement specified in the Trip
Rate Table). When these Guidelines require a statement or calculation of peak hour
trips, the morning and evening peak hour trips shall each be provided and listed
separately. Exhibit B shall be updated annually or as often as ITE revises the Trip
Rate Table, and this update shall not be considered an amendment to this policy.
I. Peak Hour Trip Rate. The term "peak hour trip rate" means the morning and
evening average weekday rate during the peak hour of the adjacent street traffic for
an allowed use and proposed use (as specified in the Trip Rate Table and as
derived from the ITE Manual). In the event the Trip Rate Table does not contain a
peak hour trip rate for an allowed use or a proposed use, the peak hour trip rate
shall be based on the morning and evening weekday average peak hour trip rate
for the most comparable land use in the Trip Rate Table. The most comparable
land use in the Trip Rate Table shall be determined by the City Council based on
recommendation of the Planning Director and the Transportation and
Development Services Manager (Traffic Engineer). The morning and evening peak
hour trip rates shall be listed separately.
J. Prior Amendment. The term "Prior Amendment" means an Amendment that:
1. Affects property or an area within the same statistical area as an
Amendment that is being considered by the Planning Commission and/or
City Council; and
2. Was approved by the City Council after December 15, 2000; and
3. Was approved within ten years prior to the date the City Council approved
the Amendment being evaluated pursuant to Section 423 and these
Guidelines; and
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4. Was determined by the City Council, or by a final judgment of a court of
competent jurisdiction, not to require voter approval pursuant to Section 423
and these Guidelines.
K. Residential Use. The term "residential use' means General Plan entitlement that is
stated in terms of dwelling units.
L. Statistical Area. The term "statistical area' shall mean one of the statistical areas
identified (on Figure LU3)) in the Land Use Element of the General Plan approved
by the City Council on July 25, 2006 (Exhibit C). The term statistical area also
means any new statistical area(s) established for property annexed to the City
subsequent to July 25, 2006 and in such event Exhibit C shall be modified to depict
any new statistical area(s).
Methodology
Section 423 requires voter approval of any major amendment to the Newport Beach
General Plan. According to Section 423, a "major amendment" is one that significantly
increases traffic, intensity or density of allowed and proposed uses. This Section describes
the methodology and assumptions to be used for purposes of calculating the traffic
(maximum peak hour trips), intensity (floor area) and density (dwelling units) of allowed
uses and proposed uses.
A. Traffic/Peak Hour Trips. The purpose of this Section is to assist the City Council,
Planning Commission, staff, the public and property owners in understanding and
calculating the traffic generated by allowed and proposed uses. Section 423
specifies that the term "significantly increases" means "over 100 peak hour trips."
Measure S and Section 423 do not define the terms "allowed uses" and "maximum
amount of traffic" and they do not specify a method of calculating any increase in
the maximum traffic resulting from an Amendment. The General Plan contains
non-residential use categories that authorize a wide range of land uses with
variations in trip generation rates that make infeasible the use of the highest peak
hour trip rate of any allowed use. Accordingly, for property or geographical areas
for which entitlement is specified in terms of one or more non-residential use
category, the peak hour trip rate specified in the Trip Rate Table represents a blend
of the ITE trip rates for the most prevalent uses within each category. The City
Council has determined that the methodology and assumptions in these Guidelines
represent the most reasonable method of determining the amount of traffic that is
allowed under the existing General Plan and the increase in peak hour trips
resulting from an Amendment. The following methodology shall be used for
calculating the peak hour trips of an allowed use and the increase, if any, in the
peak hour trips resulting from a proposed use if an Amendment is approved:
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1. Allowed Use. The peak hour trips that an allowed use could generate shall
be calculated by multiplying the entitlement for the property or area by the
morning and evening peak hour trip rate for the allowed use as specified in
the Trip Rate Table. If the allowed use is designated in terms of one or more
non-residential use category, the peak hour trip rate from the Trip Rate
Table for the applicable non-residential use category shall be used. If the
allowed use or uses are designated in terms of one or more specific land
uses, the peak hour trip rate from the Trip Rate Table for each specific use
shall be used in proportion to the amount of entitlement for each specific
use.
2. Proposed Use. The peak hour trips that a proposed use could generate shall
be calculated using the methodology specified in Subsection 1.
3. The increase, if any, in peak hour trips resulting from an Amendment shall
be calculated by subtracting the morning and evening peak hour trips
determined pursuant to Subsection 1 from the morning and evening peak
hour trips, respectively, determined pursuant to Subsection 2.
B. Intensity/Floor Area. The purpose of this Section is to assist the City Council,
Planning Commission, staff, the public and property owners in understanding and
calculating the "intensity of allowed uses" (allowed intensity) permitted by the
General Plan for any parcel or area that is designated, or proposed to be designated
for Non -Residential Uses and the allowed intensity resulting from approval of an
Amendment (proposed intensity). The Land Use Element, with the exception of
those special land uses described in Subsection 2, employs the following methods
of specifying allowed intensity: (a) allocating a specific amount of floor area
(specific floor area allocation); or (b) assigning a floor area ratio (floor area ratio),
with the allowed intensity calculated by multiplying the applicable floor area ratio
("FAR") by the gross land area of the parcel,.
1. Methodology. Except for "special uses" covered in subsections 2 and 3, the
increase in intensity resulting from approval of an Amendment shall be
calculated by subtracting the allowed intensity from the proposed intensity.
Both allowed and proposed intensity shall be calculated as follows:(i) the
specific floor area allocation; or (ii) the applicable FAR multiplied by the
gross land area.
2. Special Uses. The Land Use Element has historically entitled land uses on
the basis of the most common "unit of measurement" utilized in the ITE
Manual for calculating the peak hour traffic generated by that land use. The
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use of the appropriate "unit of measurement" ensures that the Land Use and
Circulation Elements are, as required by State law, properly correlated. Floor
area is the most common unit of measurement in the ITE Manual but a
different metric is used to measure peak hour trips in the case of certain land
uses such as hotels (rooms) and theatres (seats) because those metrics better
reflect the traffic generation characteristics of those uses. Consistent with
the ITE Manual, the City has historically entitled some large hotels in terms
of rooms and two large theaters in terms of seats. The City has, in Table
LU2 Anomaly Locations, either assigned 1,000 square feet of floor area for
each hotel room or indicated the number of hotel rooms allowed on the site.
Table LU2 also indicates the number of theater seats allowed on certain sites,
while the intensity limit for other sites where theaters are allowed is
indicated in Table LU1 Land Use Plan Categories. For the purposes of this
policy, the rate of 1,000 square feet per hotel room and 15 square feet per
theater seat shall be used.
3. 5pecial Uses/ Methodology. The "allowed intensity" of a parcel or area that
is entitled using hotel rooms or theater seats as a unit of measurement shall
be calculated on the basis of 1,000 square feet per hotel room or 15 square
feet per theater seat. The "allowed intensity" of a parcel or area that is
entitled in a unit of measurement other than floor area, hotel rooms or
theater seats shall be calculated on the basis of the greater of the floor area
specified in the "'Density/ Intensity" column of Table LU1 Land Use Plan
Categories or Table LU2 Anomaly Locations, or the amount of floor area of
the allowed uses existing on the parcel at the time the application for the
Amendment is filed.
C. Density/ Dwelling Units. The dwelling units authorized in the General Plan for
property or an area before and after an Amendment shall be determined on the
basis of the maximum number of Dwelling Units allowed on the property or area
before and after the Amendment.
D. Trip Rate Table. The Trip Rate Table contains the morning and evening average
weekday peak hour trip rate for each land use specified in the ITE Manual. The
information in the Trip Rate Table is based on the vehicle trip rates and related data
in the ITE Manual. The term "unit" in the Trip Rate Table refers to the "unit of
measurement" or "independent variable" that was used in the trip generation
studies that form the basis of the trip rates reflected in the ITE Manual.
E. Entitlement Table. The Entitlement Table shall describe, by Statistical Area, the
peak hour trip (traffic), floor area (intensity) and dwelling unit (density) increases,
if any, of each Amendment approved by the City Council subsequent to December
15, 2000. The Entitlement Table shall not include any Amendment approved by the
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voters and an Amendment shall be removed from the Entitlement Table ten (10)
years after approval by the City Council.
F. Multiple Amendments. The City Council may have occasion to approve more than
one Amendment affecting the same Statistical Area at the same meeting. In such
event, the Amendments shall be deemed approved in the following order:
1. The Amendment(s) with the earliest date(s) of initiation or application (for
example GPA 2001-001) shall be deemed approved before an Amendment
with a later date of initiation or application (for example 2002-002).
2. In the event that more than one Amendment was initiated or applied for at
the same time, the Amendments shall be deemed approved in numerical
order (for example GPA 2001-001 would be deemed approved before GPA
2001-002).
G. Change in Land Use Categ_oly. In the case of an Amendment that proposes a
change in land use from non-residential to residential or vice versa no floor area
credit shall be given for allowed density (dwelling units) and no density credit shall
be given for allowed intensity (floor area). For example, in the case of a Residential
parcel with an allowed density of 20 dwelling units the allowed intensity is zero
square feet of floor area and in the case of a Non-residential parcel with an allowed
intensity of 100,000 square feet, the allowed density is zero dwelling units.
However, traffic (peak hour trip) credit shall be in accordance with the entitlement
multiplied by the appropriate peak hour trip rate.
Procedures
This Section describes procedures to be followed prior to City Council approval of an
Amendment and the submittal of that Amendment to the voters.
A. Mandatory Procedures. The City Council shall not approve an Amendment unless
and until the Planning Commission and City Council have first conducted noticed
public hearings as required by law and prepared and certified any environmental
document that is required by the California Environmental Quality Act (CEQA)
and the CEQA Guidelines. The City Council shall, at the same time the
Amendment is considered and decided, consider and decide any discretionary
land use approval or permit that is related to the Amendment and for which an
application has been submitted.
B. Staff Reports. The Planning Department shall prepare Planning Commission and
City Council staff reports for each Amendment. All Planning Commission and
City Council staff reports on an Amendment shall contain information relevant to
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whether the Amendment, if approved, would require voter approval pursuant to
Section 423. The reports shall include the following information:
1. In the case of an Amendment where the existing and/or proposed use is a
residential use, the number of dwelling units allowed by the General Plan
before and/or after the Amendment;
2. In the case of an Amendment where the existing and/or proposed use is a
non-residential use, the amount of floor area (and relevant unit of
measurement from the Trip Rate Table if different than floor area) allowed
by the General Plan before and/or after the Amendment;
3. In all cases, the number of peak hour trips allowed by the General Plan
before and after the Amendment;
4. A table that identifies each Prior Amendment (see definition in Section (2)J)
including any increase in Peak Hour Trips, Floor Area, and/or Dwelling
Units, and the date on which each Prior Amendment was approved;
5. A table that adds eighty percent (80%) of the increases in peak hour trips,
floor area and dwelling units resulting from Prior Amendments (see
Definitions Section J) to the increases in peak hour trips, floor area and/or
dwelling units (as appropriate) resulting from the Amendment under
consideration.
6. The Entitlement Table referenced under Methodology Section E.
7. Information about the Amendment, any associated project or land use
approval and the environmental analysis that would help the Planning
Commission and City Council make informed recommendations or
decisions on the Amendment and help the public develop informed
opinions about the Amendment.
C. City Council Review. The City Council shall determine at the noticed public
hearing at which any Amendment is approved if, based on the administrative
record for the Amendment including any testimony presented at that hearing, the
Amendment requires voter approval pursuant to Section 423. The City Council
shall submit an Amendment to the voters if:
1. The Amendment modifies the allowed use(s) of the property or area that is
the subject of the Amendment such that the proposed use(s) generate(s)
more than one hundred morning or evening peak hour trips than are
generated by the allowed use(s) before the Amendment; or
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2. The Amendment authorizes an increase in floor area for the property or area
that is the subject of the Amendment that exceeds forty thousand (40,000)
square feet when compared to the General Plan before approval of the
Amendment; or
3. The Amendment authorizes an increase in the number of dwelling units for
the property or area that is the subject of the Amendment that exceeds one
hundred (100) dwelling units when compared to the General Plan before
approval of the Amendment; or
4. The increase in morning or evening peak hour trips, floor area or dwelling
units resulting from the Amendment when added to eighty percent (80%) of
the increases in morning or evening peak hour trips, floor area or dwelling
units resulting from Prior Amendments (see Definitions Section J) exceeds
one or more of the voter approval thresholds in Section 423 as specified in
Subsection 1, 2 or 3.
D. Calling an Election. In the event the City Council determines that the Amendment
requires voter approval, the City Council shall, at the noticed public hearing at
which the Amendment was approved or a subsequent noticed public hearing held
no more than sixty (60) days after making the determination, adopt a resolution
calling an election on the Amendment. The City Council shall schedule the election
on the Amendment at the next regular municipal election (as specified by the City
Charter) or at a special election if the City and the proponent of the Amendment
have entered into a written agreement to share the costs of the special election. The
City Council shall, at the time the election is called, direct the City Attorney to
prepare an impartial analysis of the Amendment. The impartial analysis shall
contain information about the Amendment, any related project or land use
approval, and the environmental analysis conducted of the Amendment that will
help the electorate make an informed decision on the Amendment. In the absence
of an ordinance or Charter provision that establishes a procedure for submittal of
arguments or rebuttals relative to City measures, the City Council shall, at the time
a decision is made to submit an Amendment to the voters, adopt a resolution that
authorizes the filing of arguments and rebuttals in accordance with the general
procedures specified in the Elections Code.
E. Exclusive Method. Effective November 3, 2004, in the absence of a mandatory
duty arising from an initiative petition, referendum petition, court order or other
mandatory legal obligation, Section 423 and the procedures outlined in these
Guidelines represent the sole and exclusive method by which the City Council
considers, approves and submits for voter approval an Amendment that is subject
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to Section 423. The City Council has also determined that nothing in Section 423
prevents the City Council from submitting any matter other than an Amendment
to the voters as an advisory measure.
[Attachment - Exhibit A]
[Attachment - Exhibit B]
[Attachment - Exhibit C]
History
Adopted A-18 - 3-27-2001
Amended A-18 - 6-8-2004
Amended A-18 - 7-13-2004
Amended A-18 - 8-11-2009
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EXHIBIT A
Section 423. Protection from Traffic and Density.
Voter approval is required for any major amendment to the Newport Beach General Plan.
A "major amendment" is one that significantly increases the maximum amount of traffic
that allowed uses could generate, or significantly increases allowed density or intensity.
"Significantly increases" means over 100 peak hour trips (traffic), or over 100 dwelling
units (density), or over 40,000 square feet of floor area (intensity); these thresholds shall
apply to the total of: 1) Increases resulting from the amendment itself, plus 2) Eighty
percent of the increases resulting from other amendments affecting the same
neighborhood and adopted within the preceding ten years. "Other amendments" does not
include those approved by the voters. "Neighborhood" shall mean a Statistical Area as
shown in the Land Use Element of the General Plan, page 89, in effect from 1988 to 1998,
and new Statistical Areas created from time to time for land subsequently annexed to the
City.
"Voter approval is required" means that the amendment shall not take effect unless it has
been submitted to the voters and approved by a majority of those voting on it. Any such
amendment shall be submitted to a public vote as a separate and distinct ballot measure
notwithstanding its approval by the city council at the same time as one or more other
amendments to the City's General Plan. The city council shall set any election required by
this Section for the municipal election next following city council approval of the
amendment, or, by mutual agreement with the applicant for the amendment, may call a
special election for this purpose with the cost of the special election shared by the
applicant and the City as they may agree. In any election required by this Section, the
ballot measure shall be worded such that a YES vote approves the amendment and a NO
vote rejects the amendment; any such election in which the ballot measure is not so
worded shall be void and shall have no effect.
This section shall not apply if state or federal law precludes a vote of the voters on the
amendment.
(End of amendment. But the proposed ballot measure also includes the following
"Second" through "Seventh":)
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Second. Purpose.
It is the purpose of the amendment to give the voters the power to prevent Newport Beach
from becoming a traffic -congested city, by requiring their approval for any change to the
City's General Plan that may significantly increase allowed traffic; and also to make sure
that major changes do not escape scrutiny by being presented piecemeal as a succession of
small changes.
Third. Findings.
1. In planning the growth of their city and protecting its quality of life, a prime
concern of the people of Newport Beach is to avoid congestion and gridlock from
too much traffic.
2. The General Plan guides growth in the City of Newport Beach by designating land
use categories for all lands in the City, and providing limits on the allowed density
and intensity of use for each land use category.
3. The General Plan already provides for additional growth in the City; if all
development allowed by the General Plan were to be built, the traffic generated in
the City would increase by about 20%.
4. The people, whose quality of life is at stake, should have the power to disapprove
any proposed General Plan amendment that may significantly increase traffic
congestion beyond that which could already occur from development under the
General Plan.
Fourth. Implementation.
1. It is the intent of the foregoing amendment to the City Charter of the City of
Newport Beach that, to the maximum extent permitted by law, it apply to all
amendments to the General Plan approved by the Newport Beach city council after
the time of filing of the Notice Of Intent To Circulate Petition, provided that it shall
not apply to any amendment for a development project which has obtained a
"vested right" as of the effective date of the foregoing amendment to the City
Charter. A "vested right" shall have been obtained if:
(a) The project has received final approval of a vesting tentative map. As to
such vesting tentative maps, however, they shall be exempt only to the
extent that development is expressly authorized in the vesting tentative map
itself; or
(b) The project has obtained final approval of a Development Agreement as
authorized by the California Government Code; or
(c) The following criteria are met with respect to the project:
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(i) The project has received a building permit, or where no building
permit is required, its final discretionary approval, and
(ii) Substantial expenditures have been incurred in good faith reliance on
the building permit, or where no building permit is required, the
final discretionary approval for the project; and
(iii) Substantial construction has been performed in good faith reliance on
the building permit, or where no building permit is required, on the
final discretionary approval.
Phased projects shall qualify for vested rights exemptions only on a phase by phase basis
consistent with California law.
2. The city council is encouraged to adopt guidelines to implement the foregoing
amendment to the City Charter of the City of Newport Beach following public
notice and public hearing, provided that any such guidelines shall be consistent
with the amendment and its purposes and findings. Any such guidelines shall be
adopted by not less than six affirmative votes, and may be amended from time to
time by not less than six affirmative votes.
3. The City shall take all steps necessary to defend vigorously any challenge to the
validity of the foregoing amendment to the City Charter of the City of Newport
Beach.
4. Peak hour trip generation rates shall be calculated using the most recent version of
the Trip Generation Manual of the Institute of Transportation Engineers. The city
may fine-tune these rates, but not to less than 95% of the rates in the Manual.
Fifth. Attachment.
Attached to this petition is a copy of page 89 of the Land Use Element of the General Plan,
showing the "Statistical Areas" of the City of Newport Beach.
Sixth. Construction.
Nothing herein shall be construed to make illegal any lawful use presently being made of
any land or to prohibit the development of any land in accordance with the provisions of
the City's General Plan in force at the time of filing of the Notice of Intent to Circulate
Petition.
Seventh. Severability.
If any part of this initiative is declared invalid on its face or as applied to a particular case,
such decision shall not affect the validity of the remaining parts, or their application to
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other cases. It is hereby declared that each part of this initiative would have been adopted
irrespective of the fact that any one or more other parts be declared invalid. "Part" is
generic, including but not limited to: Word, clause, phrase, sentence, paragraph,
subsection, section, and provision.
14
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Exhibit
B
Measure S Trip Table
Peak Hour of
Adjacent Street Traffic
Specific Land Use
Unit
Period
Rate Comments
90 Park -and -Ride Lot wlf3us Ser ico
Padang Spam
AM
0.75
_
PM
0.63
110 General Light InduWal
1000 sq ft GFA
AM
0.92
PM
0.98
neral Heavy Industrial
1000 sqPM
0.68
Industrial Park
1000 sq ft GFA
AM
0.89
PM
0.92
Manufacturing
1000 sq ft GFA
AM
0.73PM
0,74
[140
Warehousing
1000 ftGFA
AM
PM
0.45
U1
Mid -Warehouse
1000 sq ft GFA
AM
0,15
PM
0.26
Utilities
Acre
AM
0.49
210 Single -Family Detached Housinr�
D.U.
PM
AM
0.49
0.75
PM
1,01
224 Apeftent
D.U. _
AM
0.51
PM
0.82
222 Hi h-RiseApartment
D.U.
AM
0.30
_
PM
0.35
223 Mid -Rise Apartment
D.U.
AM
0.30
PM
0.39
2241 Rental Townhouse
D.U.
AM
0.70
PM
0.72
230 Residential Condominium/Townhouse
D.U.
AM
0.44
FM
0.54
231 Low -Rise Residential CondominiumrTownhouse
D.U.
AM
0.68
PM
0,83
232 High -Rise Residential Condominiurn(Townhouse
D,U.
AM
0.34
PM
0.38
233 Luxury Condominiumrrownhouse
D.U.
AM
0.56
PM
0.55
240 Mobile Home Park
D,U.
AM
0.40
PM
0.56
AM and PM peak hours coincide with peak hours of adjacent street traffic
15
21-133
E
Measure S Trip Table
Peale Hour of
Adjacent Street Traffic
Specific Land Use
254 Retirement Community W
__ _ _
@Idem Housing -Detached —_ —
-PM
Unit
__ D.U.
_ _ _
_ D.U. _
Period
AM
PM
_. r AM
Rate
0.77
0.27
0.21
0.23
Comments
— --
252 Con rebate Care Facility _ — , .—
-253
-- D.U.
AM
PM
0.06
0.17
El Housln -Attached
D.U.
AM
0.07
-PM
0.10
280 Recreational—Homes—
D.U.
AM
0 16
PM
0.26
270 Resldentlel Planned Unit Development (PUD} --
_ _
310 Hotel _ —
_ D.U.
_
— Room
AM
PM
AM
0.51
0.62
0.56
PM
0.61
_
311 All SuHcs Hotel
__
Room
AM
0.38
PM
0.40
312 Business Hotel
_..
320 Motel
Roam_ _
.----.—_Room
AM
PM
AM
0.58
0.62
0.45
_
PM
0.47
330 Resort Hotel �~
Room
AM
0.31
PM
0.42
411 Cdy Paiic
AM
No Peak Hour Data Available
PM
412 County Park
Acre
AM
0.01
PM
0.06
413 State Park
LL Pionfo Site
AM
-
No Peak Hour Data Available
PM
0.55
414 Water Side Park
AM
No Peak Hour Data Available
_ 415 Beach ParkAcre
___
416 Camp roundlRecreatlonal Vehicle Park
Camp Site
PM
AM
PM
AM
1.30
0.27
Na Peak Hour lata Available
PM
0.39
417 Regional Park
Acre
AM
No Peak Hour Data Available
-
PM
0.20
AM and PM peak hours coincide with peals hours of adjacent street traffic
16
21-134
E
Measure S Trip Table
Peale Hour of
Adjacent Street Traffic
* AM and PM peak hours coincide with peak hours of adjacent street traffic
17
21-135
. .. S elfte Land Use _ _
Nationei Monument _
Marina
Miniature Golf Course _
__
GoN Driving Range
-
Lfnit
Acre _-
Berth
Acre
Holes -_
TeeslDrivi
Positions
Period
AM
AM
PM
AM
PM
AM
PM
AMNo
- PM
Rate
-
D.08
D.19
0.21
0.30
-
0,33
-1.25
ComMoFft _
No Peak Hour Data Available
No Peak Hour Data Available
Peak Hour Data Available
418
420
_._....__..
431
432
435
441
Mu ' urpose Recreational Faality - --
Live Theater _ -
Movle Theater vlrthoul Matinee
Aom -
Seats
- _
1000 ft GFA-
AM
-Pm
AM
PM
AM
1.92
5.77
-
U.
0.22
_
No Peak Hour Data Available
443
PM
6.16
444
Movie theater with Matineew -
_ ---
Tennis Courts -
---.1000 sq ft GFA
_ _
-Tennis Court-�
AM
PM
AM
=
3.80
1.67
No Peak Hour Data Available
-
491
PM
3.88
492
Racquet Club
Court
AM
1.40
Health Club
_
1000 sq $GFA
PM
AM
3.85
0.30
493
-�
PM
4.30
494
_
Bawling Alley
Bowli Lanes
AM
3.13
PM
3.54
495
Recreational Community Center -
1000 aq ft GFA
AM
1.32
PM
1.75
520
Elements School _
Student
AM
0.29
PM
No Peak Hour Data Available
521
Private School (K-12)
1000 sq ft GFA
AM
3,54
PM
5.50
522
_
Middle 5ohoollJunior High Schpal _ _�
_
1000 sq ft GFA
AM
PM
3.68
1.23
-
530
High School
1000 aq ft GFA
AM
3.22
_-.
PM
1.02
* AM and PM peak hours coincide with peak hours of adjacent street traffic
17
21-135
Emu.,
Measure S Trip Table
Peak Hour of
Adjacent Street Traffic
S —elfle Land Use
---54DJunloWdrnmunityCap e_qe
- �60 � �ntmrs4r-i
-566
Unit
1000 aq ft GFA
Student
Period
AM
IRM
AM
PM
Rate Comments
1.62
1.77
0.21
0.21
Church
1000aqftGFA
AM
PM
0.72
0.66
56I §nagogue
1000 sq ft GFA
AM
0.33�
-565-
PM
3.14
Day Care Center
1000 sq ft GFA
AM
12.71
PM
13.20
Wo Cemetery
590 Library
91 LodgedFraternal Organization
Acre
Sq ft GFA
Member
AM
PM
AM
PM
AM
0.17
0-84
1.06
7.09
OX1
PM
0,03
610 Has nal
620 Nursing Home
- 1 DUO sq ft GFA
1000 ag ft GFA
AM
PM
AM
0,97
0.92
0.40
IRM
0.36
630 Clinic
1000 sq ft GFA
AM_
- No Peak Hour Data Available
PIA
5.18
710 Genem.Offioe Building
1000 sq It GFA
AM
1.66
PM
1.49
714 Corporate Headquarters Building
1000 sq It GFA
AM
1.47
PM
1.39
715 Single Tenant Office Building
1000 sq ft UFA
AM
1.78
PM
1.72
720 MedicalL-lDental Office Building
1000 sq ft GFA
AM
2.43
PM
3.66
730 Government Offlae Building
1000 ft GFA
AM
6.88
-
FM
- No Peak Hour Data Available
731 State Motor Vehicles Department
1000 sq ft GFA
AM
9.84
---
--------
PM
17.09
733 Government Office Complex
1000 sq It GFA
AM
2.25
PM
2.861
* AM and PIVI Peak hours coincide with peak hours of adjacent street traffic
100
21-136
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Measure S Trip Table
Peak Hour of
Adjacent Street Traffic
Specific Land Use
Unit
Period
Rate Comments
750 Office Park
1000 sq ft GFA
AM
1.74
760 Research and ale ant Center -
1000 sq FA ft G
_ PM
AM
1.50 "
1.24 w
770 Business Par1c _ - __
_ 1000 sq ft GFA
AM
1.43
_ 812 Building Maierials and Lumber Stare
1000sq ft GFA
PM
AM
1.29
2,64
813 FreStSlandrng Dlsoount Superstore
1000 sq ft GFA_
PM
AM
4,04
1,84
_ 614 Spadalty Retail Center _- _
1000 sq ft GLA
PM
AM
3.82
- No Peak Hour Dasa Available
815 Freestanding Discount Store — _
- ---
1004 ft GFA
_... PM
AM
2.59
0,99
818 HardwareJPafnt Store
1000 aq ft GFA
PM
AM
4.24
1,08
PM
4.42
817 Nurse _ i ?ardenCenter -
1000 sq ft GFA
AM
1.31
- 818 Nurse Wholesale ----W".
1000 W ft GFA
AM
2.40
_
820 Vhqppinq Centerft
GLA
PM
AM
5,17
1.03
_
831 Qualit Restaurant -_ `
1000s ftGFA
PM
AM
3.74
0.81
PM
7.49
832 High- umover (SIFDom) Restaurant
1000 sq ft GFA
AM
9.27
PM
10.86
833 Fast -Food Rest, w/o Ddve-Through Window
1000 sq ft GFA
AM
43.87
PM
26.15
834 Fast -Food Rest wlDdve-Through Window
1000 sq ft GFA
AM
49.86
PM
33.48
8$5 Fast -Food Rest wIlDrive-ThroughlNindow& No Indoor Seatin
1000 sq ft GFA
AM
No Peak Hour Data Available
PM
153.85
836 Drinking Place
1000 sq ft GFA
AM
No Peak Hour Data Available
PM
11.54
837 1 Quids Lubrication Vehicle Shop
Servicing Position
AM
3.00
PM
—5. 19
* AM and PM peak hours coinefde with peak hours of adjacent street traffic
W
21-137
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Measure S Trip Table
Peak Hour of
Adjacent Street Traffic
AM and PM peak hours coincide with peak hours of adjacent street traffic
CO
21-138
-
Measure S Trip Table
Peak Hour of
Adjacent Street Traffic
Specific Land Use
Unit
Period
AM
PM
Rate Comments
2.66
10.40
881 PiramtacylDrugs re wlDrive-Through Window -` — - 1 OW sq fl GFA
�-
__
890 Furniture Store —�—
7000 aq ft GFA
AM
0.17
PM
0.45
895 Vrdea Arcade
1000 sift GFA
_
AM
- No Peak Hour Data Available
PM
10.64
_
896 Video Rental Store — .--
1000 aq R GFA
AM
W INo Peak Hour Data Available
PM
13.60
911 Walk-in Bank _
1000 aq it GFA
ANI
4.07
PM
33.15
912 Drive-in Bank
1000 sq ft GFA_
AM
PM
3.06
9.37
" AM and PM peak hours coincide with peak hours of adjacent street traffic
21
21-139
Measure S Trip Table
Peak Hour of
Adjacent Street Traffic
General Non -Residential Use Categories
Unit
Commercial (Retail Service Commercial, Administrative Professional
Financial and Recreatlonal and Marine Commercial
4000 sq ft GF.
Genera! Plan Industrial
1000 sq R GF.
Gen®rat Plan Public, Semi -Public, & InsMutional
1000 sq ft GF.
" AM and PM peak hours coincide with peak hours of
N
21-140
Al
Exhibit C
Figure LU3 - Statistical Area Map
EXHIBIT C
0
23
-
0 0.25 0.5 Miles
I I
21-141