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c�<,FORN'P City Council Staff Report
October 12, 2021
Agenda Item No. 16
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Seimone Jurjis, Community Development Director - 949-644-3232,
sjurjis@newportbeachca.gov
PREPARED BY: Benjamin M. Zdeba, Senior Planner
PHONE: 949-644-3253, bzdeba@newportbeachca.gov
TITLE: Resolution No. 2021-98: Notice of Intent to Override the Orange
County Airport Land Use Commission's Determination of
Inconsistency to the Draft Housing Element Update (PA2017-141)
/_1 16*1 d:7_T91
Pursuant to Section 4.3 of the John Wayne Airport Environs Land Use Plan (AELUP) and
Section 21676(b) of the California Public Utilities Code, the City of Newport Beach (City)
is required to submit the draft 6t" Cycle Housing Element update to the Airport Land Use
Commission (ALUC) for a consistency determination with the AELUP. ALUC conducted
a hearing on the matter on September 16, 2021, and found the draft was inconsistent with
the AELUP.
For the City Council's consideration is a request to override the ALUC finding of
inconsistency. This action would authorize staff to formally provide notice, pursuant to
Public Utilities Code Section 21676 (b), to the ALUC and the State Division of Aeronautics
of the City's intention to override the ALUC inconsistency finding.
RECOMMENDATION:
a) Conduct a public hearing;
b) Find this project is not subject to 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 because it has no potential for resulting in physical
change to the environment, directly or indirectly; and
c) Adopt Resolution No. 2021-98, A Resolution of the City Council of the City of Newport
Beach, California, Notifying the Orange County Airport Land Use Commission and
the State Division of Aeronautics of the City's Intention to Find the General Plan
Housing Element Update is Consistent with the Purposes of the State Aeronautics
Act and Overrule the Orange County Airport Land Use Commission's Determination
that the Housing Element Update is Inconsistent with the 2008 John Wayne Airport
Environs Land Use Plan (PA2017-141).
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Resolution No. 2021-98: Notice of Intent to Override the Orange County Airport Land
Use Commission's Determination of Inconsistency to the
Draft Housing Element Update (PA2017-141)
October 12, 2021
Page 2
DISCUSSION:
Airport Land Use Commission
Section 4.3 of the AELUP and Section 21676(b) of the Public Utilities Code require the
City to submit the draft 6t" Cycle Housing Element Update (i.e., a General Plan
amendment) to the ALUC for a consistency determination with the AELUP. ALUC
conducted a hearing on the matter on September 16, 2021 (Attachment B). City staff
attended the hearing and provided a brief overview of the City's efforts to comply with the
Regional Housing Needs Assessment (RHNA) allocation and the need to locate
additional housing opportunities in the Airport Area and its proximity. After review and
discussion, ALUC voted unanimously (7-0) to find the City's Draft Housing Element
Update inconsistent with the AELUP based on noise, safety and general concerns of land
use incompatibility that are inconsistent with ALUC's purpose and responsibilities.
Noise
The AELUP uses the Community Noise Equivalent Level (CNEL) system for measuring
noise impacts, which is a weighted average of noise over time. The AELUP defines the
noise exposure in the 60-65 dBA CNEL noise contour (Noise Impact Zone 2) as
"Moderate Noise Impact" and in the 65-70 dBA CNEL noise contour (Noise Impact Zone
1) as "High Impact." (AELUP Sections 3.2.3, 3.2.4.) Residential uses are identified as
"conditionally consistent" for the 60-65 dBA CNEL noise contour and "normally
inconsistent" for the 65-70 dBA CNEL noise contour (AELUP Section 3, Table 1
[Limitations on Land Use Due to Noise]). However, residential uses are not outright
prohibited. Instead, they are required to be developed with advanced insulation systems
to bring the sound attenuation to no more than 45 dB inside. In addition, residential uses
within the 65-70 dBA CNEL noise contour are required to be "indoor -oriented," which
helps to ensure quality of life for residents in this area.
The City's General Plan Land Use and Noise Elements currently require that residential
development in the Airport Area be located outside of the 65 dBA CNEL noise contour
(Policies LU 6.15.3 and N 3.2). However, as part of the City's comprehensive update to
the General Plan, these policies will be updated to reflect and allow the additional housing
opportunity sites in the higher impact noise zones.
Safety
AELUP Section 2.1.2 (Safety Compatibility Zones) sets forth zones depicting which land
uses are acceptable in various portions of John Wayne Airport (JWA) environs. Most of
the housing opportunity sites, with the exception of portions of three properties, are all
within Safety Zone 6. Allowed uses in Safety Zone 6 include residential and most
nonresidential uses, excepting outdoor stadiums and similar uses with very high
intensities. Uses that should be avoided include children's schools, large day-care
centers, hospitals, and nursing homes. Risk factors associated with Safety Zone 6
generally include a low likelihood of accident occurrence.
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Resolution No. 2021-98: Notice of Intent to Override the Orange County Airport Land
Use Commission's Determination of Inconsistency to the
Draft Housing Element Update (PA2017-141)
October 12, 2021
Page 3
General Plan Safety Element Policy S 8.6 demonstrates that the City acknowledges the
importance of the JWA Safety Zones:
S 8.6 John Wayne Airport Traffic Pattern Zone
Use the most currently available John Wayne Airport (JWA) Airport Environs Land
Use Plan (AELUP) as a planning resource for evaluation of land use compatibility
and land use intensity in areas affected by JWA operations. In particular, future
land use decisions within the existing JWA Clear Zone/Runway Protection Zone
(Figure S5) should be evaluated to minimize the risk to life and property associated
with aircraft operations.
Compliance with these policies and regulations will ensure that future development within
the JWA Airport Planning Area will follow the safety standards of the AELUP.
General Land Use Compatibility
The standards and policies set forth in AELUP Sections 2 and 3 were adopted to prevent
the creation of new noise and safety problems. As set forth above, any development on
the proposed housing opportunity sites will comply with the noise criteria and safety
standards established in Sections 2 and 3. Compliance with the AELUP standards will
also be evaluated and demonstrated at the time development projects are proposed in
the future.
Override Process
As a final review authority on legislative acts, the City Council may choose to override
ALUC's determination by following a two-step process, which is established in Public
Utilities Code Section 21676. The first step in the process is to conduct a public hearing
to adopt a resolution of intention to override, a copy of which would be sent to ALUC and
the State Division of Aeronautics to provide formal notification of the City's intent.
The second step in the process is that, not less than 45 -days after notification has been
sent to ALUC and State Division of Aeronautics, the City Council may conduct a second
public hearing to consider adopting a resolution to override the ALUC. At that time, the
City Council may also consider taking final action and adopting the Housing Element.
The following points are important to consider:
The Council's adoption of the attached notification resolution does not constitute
the Housing Element's approval, nor does it predispose the City Council's future
action on either the Element or the consistency determination;
The attached resolution notifying ALUC and the State Division of Aeronautics of
the City's intent, and the resolution to overrule ALUC, which will be presented at a
future hearing, must be adopted by a two-thirds vote. Since there are seven
Council districts, five affirmative votes are needed to pass the resolution.
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Resolution No. 2021-98: Notice of Intent to Override the Orange County Airport Land
Use Commission's Determination of Inconsistency to the
Draft Housing Element Update (PA2017-141)
October 12, 2021
Page 4
Should the City Council ultimately overrule the ALUC decision, that action will not
immediately affect the City's status as a consistent agency with the AELUP. ALUC
would need to place an item on its future agenda to consider deeming the City an
inconsistent agency.
Public Utilities Code Section 21678 states that if the City overrides ALUC's action or
recommendation, the operator of the airport shall be immune to liability from damages to
property or personal injury caused by or resulting directly or indirectly from the City's
decision to overrule the ALUC determination.
FISCAL IMPACT:
There is no fiscal impact related to this item.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action 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, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
Notice of this hearing was published in the Daily Pilot in a larger 1/8t" page format. Notice
was also provided by way of an email subscribers of the Planning Division's notification
list. The item also appears on the agenda for this meeting, which was posted at City Hall
and on the City website in accordance with the Brown Act.
ATTACHMENTS:
Attachment A — Resolution No. 2021-98
Attachment B — ALUC Letter of Determination
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ATTACHMENT A
RESOLUTION NO. 2021- 98
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, NOTIFYING THE
ORANGE COUNTY AIRPORT LAND USE COMMISSION
AND THE STATE DIVISION OF AERONAUTICS OF THE
CITY'S INTENTION TO FIND THAT THE GENERAL PLAN
HOUSING ELEMENT UPDATE IS CONSISTENT WITH
THE PURPOSES OF THE STATE AERONAUTICS ACT
AND OVERRULE THE ORANGE COUNTY AIRPORT
LAND USE COMMISSION'S DETERMINATION THAT
THE HOUSING ELEMENT UPDATE IS INCONSISTENT
WITH THE 2008 JOHN WAYNE AIRPORT ENVIRONS
LAND USE PLAN (PA2017-141)
WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the
City Council with the authority to make and enforce all laws, rules and regulations with
respect to municipal affairs subject only to the restrictions and limitations contained in the
Charter and the State Constitution, and the power to exercise, or act pursuant to any and
all rights, powers, and privileges, or procedures granted or prescribed by any law of the
State of California,
WHEREAS, City of Newport Beach ("City") staff has been working alongside its
consultants, the Housing Element Update Advisory Committee ("HEUAC"), the Planning
Commission, City Council and the community over the past two years to draft the 2021-
2029 6th Cycle Housing Element ("Project") as required by California Government Code
Section 65588;
WHEREAS, California Public Utilities Code Section 21676(b) requires the City to
refer the Project to the Orange County Airport Land Use Commission ("ALUC") to review
for consistency with the 2008 John Wayne Airport Environs Land Use Plan ("AELUP");
WHEREAS, on September 16, 2021, the ALUC voted unanimously finding the
Project inconsistent with the AELUP;
WHEREAS, pursuant to California Public Utilities Code Sections 21670 and
21676, the City Council may, after a public hearing, propose to overrule the ALUC by a
two-thirds vote, if it makes specific findings that the Project is consistent with California
Public Utilities Code Section 21670 purpose of protecting the public health, safety, and
welfare by ensuring the orderly expansion of airports and the adoption of land use
measures that minimize the public's exposure to excessive noise and safety hazards
within areas around public airports to the extent that these areas are not already devoted
to incompatible uses; and
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Resolution No. 2021 -
Page 2 of 6
WHEREAS, the City Council held a public hearing on October 12, 2021, in the City
Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice
of time, place, and purpose of the hearing was given in accordance with California Public
Utilities Code Section 21676(b) and Government Code Section 54950 et seq. 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 finds that the Project is consistent with the purposes
of California Public Utilities Code Section 21670 and the AELUP of protecting the public
health, safety, and welfare by ensuring the orderly expansion of airports and the adoption
of land use measures that minimize the public's exposure to excessive noise and safety
hazards within areas around public airports to the extent that these areas are not already
devoted to incompatible uses.
Facts in Support
1. The Project is consistent with the noise standards of the AELUP.
The AELUP guides the orderly development of John Wayne Airport ("MA") and the
surrounding area through implementation of the standards in AELUP Section 2 (Planning
Guidelines) and Section 3 (Land Use Policies). Implementation of these standards are
intended to protect the public from the adverse effects of aircraft noise, ensure that people
and facilities are not concentrated in areas susceptible to aircraft accidents, and ensure
that no structures or activities adversely affect navigable airspace.
AELUP Section 2.1.1 sets forth the Community Noise Equivalent Level ("CNEL")
standards. The Project includes 23 new housing opportunity sites within the 60-65 dBA
CNEL contour and 28 new housing opportunity sites within the 65-70 dBA CNEL contour.
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Resolution No. 2021 -
Page 3 of 6
Sections 3.2.3 and 3.2.4, respectively, of the AELUP define the noise exposure in the 60-
65 dBA CNEL noise contour (Noise Impact Zone 2) as "Moderate Noise Impact" and in
the 65-70 dBA CNEL noise contour (Noise Impact Zone 1) as "High Impact." Section 3,
Table 1 (Limitations on Land Use Due to Noise) of the AELUP identifies residential use
as "conditionally consistent" with the 60-65 dBA CNEL noise contour and "normally
inconsistent" with the 65-70 dBA CNEL noise contour. However, residential uses are not
outright prohibited. Instead, AELUP Section 3.2.3 requires residential uses to be
developed with advanced insulation systems to bring the sound attenuation to no more
than 45 dB inside. In addition, residential uses within the 65-70 dBA CNEL noise contour
are required to be "indoor -oriented" to preclude noise impingement on outdoor living
areas.
The City's General Plan Land Use Element Policy LU 6.15.3 and Noise Element Policy N
3.2 currently require that residential development in the Airport Area are to be located
outside of the 65 dBA CNEL noise contour. However, as part of the City's comprehensive
update to the General Plan, these policies will be updated to reflect and allow the
additional housing opportunity sites in the higher impact noise zones.
The Newport Beach General Plan Noise Element additionally requires residential
developers to notify purchasers or tenants of aircraft overflight and noise. The Project,
which is an update to the Housing Element, does not remove this requirement and future
developments will be remain subject to review, which will include consideration of
compliance with the applicable Noise Element policies.
Compliance with these policies and regulations will ensure that future development within
the John Wayne Airport Planning Area will follow the noise standards of the AELUP.
2. The proposed Project is consistent with the safety standards of the AELUP.
AELUP Section 2.1.2 (Safety Compatibility Zones) sets forth zones depicting which land
uses are acceptable in various portions of the JWA environs. Most of the housing
opportunity sites, with exception of portions of three properties, are all within Safety Zone
6. Allowed uses in Safety Zone 6 include residential and most nonresidential uses,
excepting outdoor stadiums and similar uses with very high intensities. Uses that should
be avoided include children's schools, large day-care centers, hospitals, and nursing
homes. Risk factors associated with Safety Zone 6 generally include a low likelihood of
accident occurrence.
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Resolution No. 2021 -
Page 4 of 6
The Newport Beach Golf Course and the Young Men's Christian Association ("YMCA")
properties are partially located within Safety Zone 4. Safety Zone 4 limits residential uses
to very low density (if not deemed unacceptable because of noise) and advises against
nonresidential uses having moderate or higher usage intensities. The proposed housing
opportunity sites for these properties will comply with the density limitations.
The City's General Plan Safety Element Policy S 8.6 demonstrates the importance of the
JWA Safety Zones to the City:
"S 8.6 John Wayne Airport Traffic Pattern Zone
Use the most currently available John Wayne Airport (JWA) Airport Environs Land Use
Plan (AELUP) as a planning resource for evaluation of land use compatibility and land
use intensity in areas affected by JWA operations. In particular, future land use decisions
within the existing JWA Clear Zone/Runway Protection Zone (Figure S5) should be
evaluated to minimize the risk to life and property associated with aircraft operations."
In accordance with Policy S 8.6, the Project does not include any housing opportunity
sites in the JWA Clear Zone/Runway Protection Zone. Compliance with these policies
and regulations will ensure that future development within the JWA Airport Planning Area
will follow the safety standards of the AELUP.
3. The proposed Project is consistent with the purpose and intent of the AELUP and
will not result in incompatible land uses adjacent to JWA.
The standards and policies set forth in Sections 2 (Planning Guidelines) and 3 (Land Use
Policies) of the AELUP were adopted to prevent the creation of new noise and safety
problems. As set forth above, any development on the proposed housing opportunity
sites will comply with the noise criteria and safety standards established in Sections 2
and 3. Further, compliance with the AELUP standards will be evaluated and
demonstrated at the time development projects are proposed in the future.
Section 2: Based upon the foregoing finds, the City Council provides this notice
of intention to overrule the ALUC's determination that the Project is inconsistent with the
AELUP.
Section 3: The City Council hereby directs City staff to provide the ALUC and
Caltrans Department of Transportation, Division of Aeronautics, with notice of the City's
intent to overrule the ALUC's determination of inconsistency for the Project.
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Resolution No. 2021 -
Page 5 of 6
Section 4: The recitals provided in this resolution are true and correct and are
incorporated into the operative part of this resolution.
Section 5: 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 6: The City Council finds the adoption of this resolution 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. Specifically, the resolution does not have the potential for resulting in either a
direct physical change in the environment, or a reasonably foreseeable indirect physical
change in the environment because it is limited to the City's proposal to overrule the
ALUC's determination and does not commit the City to approve the Project. The Project
will be independently reviewed and evaluated pursuant to CEQA.
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Resolution No. 2021 -
Page 6 of 6
Section 7: 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 12th day of October, 2021.
Brad Avery
Mayor
ATTEST:
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Aaron arp
City rney
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Attachment B
ALUC Letter of Determination
16-11
AIRPORT LAND USE COMMISSION
ORANGE COUNTY
FOR ORANGE COUNTY
3160 Airway Avenue • Costa Mesa, California 92626 - 949.2S2.SI70 fax: 949.252.6012
September 17, 2021
Jim Campbell
Deputy Community Development Director
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Subject: ALUC Determination for City of Newport Beach Housing Element Update (2021-2029)
Dear Mr. Campbell:
During the public meeting held on September 16, 2021, the Airport Land Use Commission (ALUC) for
Orange County considered the subject item. The matter was duly discussed, and with a unanimous vote of
6-0, the Commission found the proposed Draft Housing Element Update (2021-2029) to be Inconsistent
with the Airporl Environs Land Use Plan (AELL`P) for John Wayne Airport (JWA) per:
• Section 2. 1.1 Aircraft Noise that the "aircraft noise emanating from airports may be incompatible
with general welfare of the inhabitants within the vicinity of an airport."
Section 2.1.2 Safety Compatibility Zones in which "the purpose of these zones is to support the
continued use and operation of an airport by establishing compatibility and safety standards to
promote air navigational safety and to reduce potential safety hazards for persons living, working or
recreating near JWA."
Section 2.1.4, and PUC Section 21674 which state that the Commission is charged by PUC Section
21674(a) "to assist local agencies in ensuring compatible land uses in the vicinity of —existing
airports to the extent that the land in the vicinity of those airports is not already devoted to
incompatible uses," and PUC Section 21674(b) "to coordinate planning at the state, regional and
local levels so as to provide for the orderly development of air transportation, while at the same
time protecting the public health, safety and welfare."
Please contact Julie Fitch at jfitch@ocair.com or at (949) 252-5284 if you require additional information or
have questions regarding this proceeding.
Sincerely,
Lea U. Choum
Executive Officer
cc: ALUC
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