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HomeMy WebLinkAboutPA2019-248_20200309_Tanner Letter  David J. Tanner  Page 1 of 6  3‐9‐2020  dave@earsi.com  Mayor O’Neil Member of the City Council Subject: Ordinance No. 2020-9: Introduction of an Accessory and Junior Accessory Dwelling Unit Ordinance (PA2019-248). Thank you for the efforts you are making to combat the onslaught of housing and affordability regulations imposed on the City by the State legislature. I appreciate the opportunity to comment and provide input to help the Council find acceptable solutions. I ask the Council not take action on Ordinance No. 2020-9 (the Ordinance) at this time. The benefits of approving the Ordinance at this time will be far outweighed by negative consequences. While approving the Ordinance at this time may appear to be a routine action the City can take to comply with State housing law, the implications of this action would be far reaching. The Broader Picture To construct new housing in built-out communities such as Newport Beach, builders face higher development costs and infrastructure constraints, making new housing development less profitable or even infeasible, resulting in pressure on the City to re-classify lands for higher densities. Given free reigns, it is clear what the BIA wants to do, without any apparent consideration for the adverse impacts to the City. Build, build, build, there is no end and no building too tall! CEQA is one of the key laws relied upon by the State and local governments to protect the environment and provide for a sustainable future. CEQA compliance is an obstacle the State seeks to remove because it impedes the State from achieving a competing goal, the production of housing in urban in-fill areas such as Newport Beach. CEQA requires projects to mitigate for their adverse impacts and requires public notification providing the opportunity for community input. Community input reflects the community’s vision and involvement in self-governance. This vision is the core of the General Plan. Removal of CEQA housing protections means the City will subsidize housing whether through increased density bonuses, reduction of parking standards, exceedance of building height limits, or reductions to minimum building setback requirements. These subsidies have a negative impact on the community, just as the State’s over-reaching housing laws will, if unchecked, require the City to re-classify land for higher density development. Combine new higher density development with relaxed CEQA protections and/or CEQA housing exemptions and housing subsidies will overburden the City’s infrastructure and jeopardize the health, safety and welfare of the community.   David J. Tanner  Page 2 of 6  3‐9‐2020  dave@earsi.com  I and many other residents do not support the City’s effort to circumvent the CEQA process or alter the required General Plan update process by piecemealing approval of an updated Housing Element which would be inconsistent with other General Plan Elements, ahead of the updated General Plan. Given the number of housing units the City has produced in recent years, State housing laws are unfairly burdening the City. The State is clearly not looking out for the interests of built-out cities in urban infill areas, such as Newport Beach. Rather than loosen environmental protections, I and many other residents urge the City to strengthen its environmental protections, thereby ensuring a sustainable future and protection of the public’s health, safety and welfare. The Proposed Ordinance No Action: If the Ordinance is not adopted at this time, ADUs will be constructed in accordance with State law. Penalty for no action at this time: None. Consider the Coastal Commission denied the Banning Ranch Coastal Permit which proposed to add a significant number of households/populations within the coastal zone. The Coastal Commission may not accept a partial LCP Amendment as complete; approve a significant increase in household density within the coastal zone; or determine the proposed LCP Amendment is not subject to CEQA. Benefit to the City by taking action now: The only benefit to the City from adopting this Ordinance at this time is a requirement in the Ordinance to provide one additional on-site parking space under certain conditions for ADUs within the coastal zone (“Accordingly, the proposed amendment to Title 21 requires replacement parking for any garage, carport, or other covered parking that is converted to an ADU”). Discussion Using Staff’s assessment of the low number of ADUs expected to be built prior to the General Plan update, the benefit to the City from the additional parking spaces is minimal (less than 20 on-street parking spaces would be lost if no action is taken). Staff’s opinion does not take into account the effects of the October 2019 housing laws which invalidated the City’s ordinance regulating ADUs. The October 2019 ADU laws allow ADUs and JADUs to be built on any residential or multifamily zoned lot within the City. The (invalidated) City ADU ordinance effectively limited ADUs from the coastal zone by establishing a minimum lot size. JADUs did not exist prior to October 2019.   David J. Tanner  Page 3 of 6  3‐9‐2020  dave@earsi.com  The facts are:  The City does not know how many ADUs and JADUs will be built;  The laws allow ADUs and JADUs to be constructed on any residential zoned lot; and  The City has no control over the number of ADUs and JADUs constructed. Just like health emergencies that you have no to little control over, government needs to develop a plan for the worst-case and take all reasonable steps to insure the worst-case does not occur, not rely on an optimistic opinion of the probable effect. CEQA Compliance I believe the action to approve the Ordinance at this time is subject to CEQA because the Ordinance (amendment of the LCP Implementation component) is part of a larger plan, the LCP, which is an integral component of the General Plan. Both LCP and General Plan amendments are subject to CEQA. The Ordinance has the potential to result in one or more potentially significant adverse impacts on the environment. Pursuant to California Public Resources Code 21080 – (d) & (e), the Ordinance is subject to CEQA.1 Furthermore, the City Council has not acted to adopt the weakened 2018 Updated State CEQA Guidelines and therefore, cannot rely upon the exemptions contained in the 2018 Updated State CEQA Guidelines2. City Policy K-03 should not be relied upon even though under Section D-1. a. “Exceptions” the Ordinance is not exempt. The expectation of the public in approval of Measure S was to ensure the then City Council or any future City Council not take any actions which have the potential to result in one or more significant adverse environmental effects without first analyzing and disclosing those effects to the public for their review and comment. City Policy K-03 did not contemplate routine adoption of CEQA Guidelines amendments which would remove or exempt critical topics of paramount importance to the health and safety and welfare of the public, such as Traffic, certain Airport activities, and matters effecting the ability of our emergency providers to protect public health, safety and welfare in the event of a large-scale emergency evacuation on short notice from a natural or man-made disaster.   1 California Public Resources Code 21080 – (d) “If there is substantial evidence, in light of the whole record before the lead agency, that the project may have a significant effect on the environment, an environmental impact report shall be prepared.” (e) (1) “For the purposes of this section and this division, substantial evidence includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact. 2 CEQA Guidelines Section 15022(c) PUBLIC AGENCY IMPLEMENTING PROCEDURES “Public agencies should revise their implementing procedures to conform to amendments to these Guidelines within 120 days after the effective date of the amendments.” CEQA Guidelines Section 1505(b) "Public agencies are advised to follow this guidance in the absence of compelling, countervailing considerations."   David J. Tanner  Page 4 of 6  3‐9‐2020  dave@earsi.com  The Ordinance, if adopted will permit a significant increase in households/population, resulting in the potential for a significant increase in traffic congestion, vehicle miles traveled, vehicular emissions, greenhouse gas emissions, vehicular noise, demands on water and wastewater facilities, schools, parks, utility purveyors, emergency responders, and public health, safety and welfare, particularly in times of natural or man-made disasters within the coastal zone. A significant increase in households/population will impact jobs housing balances and transportation infrastructure throughout the City. If the Ordinance is approved, these adverse effects will not be mitigated and negatively impact the quality of life, public health, safety and welfare Newport Beach residents have sacrificed to achieve. Please note that:  No environmental review has been conducted.  No General Plan consistency analysis has been conducted.  No consideration of environmental justice has been considered. Should this ordinance be adopted, what is the potential for already burdened coastal communities to experience a significant increased risk in the event of a large-scale emergency evacuation on short notice from a natural or man-made disaster? 3 Negative Effects, Relationship to the General Plan and Municipal Affairs If the Ordinance is adopted at this time, the benefit from preventing the loss of less than 20 parking spaces will be far outweighed by its negative effects. Negative effects include:  Significant adverse environmental effects;  The implications this action will have on the City’s police powers/municipal affairs;  The predetermination of ADU/JADU policy ahead of the General Plan update process; and  The precedent set by approving one component of the General Plan independently from the other Elements which will result in significant inconsistencies between the Elements, and doing so in a manner which circumvents CEQA. The City General Plan and its LCP are in non-conformance with State Housing and affordability laws (SB 13 (Chapter 653, Statutes of 2019), AB 68 (Chapter 655, Statutes of 2019), and AB 881 (Chapter 659, Statutes of 2019)). The City has initiated a General Plan update to remedy these and other non-conformities. While the State Legislature determined that housing is a matter of statewide concern, rather than a municipal affair, these new laws challenge the police authority of the City to protect the public's health, safety and welfare and contradict the intent of the Greenlight Initiative (Measure S). 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. Measure S “encourages” the City Council to adopt implementing guidelines that are consistent with its purpose and intent. The protection of public health, safety and welfare from a   3 Consider existing resident population + new ADU & JADU population + business + tourism/visitors    David J. Tanner  Page 5 of 6  3‐9‐2020  dave@earsi.com  significant increase in households/population and the secondary adverse environmental impacts resulting therefrom is the core intent of Measure S. Approval of this Ordinance at this time will create an internal inconsistency within the adopted LCP, causing the LCP to be inconsistent the with the General Plan. Specifically, the proposed Ordinance updates only the LCP “Implementation” component (zoning component) permitting an increase in household/population that exceeds the households/population in the LCP “Land Use” component. It is intended that all provisions of the LCP “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”.4 The LCP is an integral component of the General Plan.5 General Plan components must be internally consistent. Approval of the proposed Ordinance at this time would create an inconsistency between the LCP and General Plan by permitting a roughly doubling of the households/population within the coastal zone far exceeding that anticipated in either the LCP Land Use component or the General Plan. General Plan amendments and LCP amendments are subject to CEQA. CEQA requires the scope of its compliance documents (in this case an EIR) to address the whole of the action. CEQA prohibits piecemealing, which would occur if the Ordinance is approved at this time. Approval of the Ordinance at this time would concede the City’s police/municipal authority to protect the public health, safety and welfare, to the State over all matters of statewide concern. Furthermore, this action would be inconsistent with Council policy to proceed with the General Plan update on a three-path approach. Lastly please take into consideration the public’s concerns regarding the Councils intent to protect the public’s health, safety and welfare when taking action on this item. Conclusion and Recommendation I recommend this Ordinance be tabled until the Local Coastal Plan (LCP) Land Use component is updated, following the approval of the comprehensive General Plan update. The EIR for the General Plan update will address the environmental effects permitted by an increase in households/population and allow public involvement and input. Given the magnitude of the changes required to comply with housing and environmental laws, the updated General Plan will be subject to an affirmative vote of the public. If the Ordinance were considered following the General Plan update, the Ordinance would quality for a CEQA statutory exemption or could rely upon the General Plan update FEIR.   4 Municipal Code: LCP Implementation Plan § 21.10.030 B. Authority—Relationship to Coastal Land Use Plan.  5 21.10.030 C. Should a conflict exist between the policies set forth in any element of the City’s General Plan, Zoning, or any other ordinance and those of the Coastal Land Use Plan, policies of the Coastal Land Use Plan shall take precedence. However, in no case shall the policies of the Coastal Land Use Plan be interpreted to allow a development to exceed a development limit established by the General Plan or its implementing ordinances. (Ord. 2016-19 § 9 (Exh. A)(part), 2016)    David J. Tanner  Page 6 of 6  3‐9‐2020  dave@earsi.com  By waiting, the City will have received input identifying the Coastal Commission’s positions on new housing laws. In light of the unanticipated changes in the 2018 Updated State CEQA Guidelines, Policy K-03 should be revised to require Council oversight when CEQA Guideline amendments occur. I know the Council is aggressively challenging the problems faced by new housing stimulus and affordability laws. I will be the first to admit, I don’t know all the information presented to the Council or steps taken or contemplated by the Council to confront these issues. I hope these comments help rather than hinder the Councils efforts to find a path forward.