HomeMy WebLinkAboutPA2021-296_20220512_Coastal Commission Response LetterCommunity Development Department
CITY OF NEWPORT BEACH
100 Civic Center Drive
Newport Beach, California 92660
949 644-3200
newportbeachca.gov/communitydevelopment
May 12, 2022
Mr. Karl Schwing, Deputy Director
California Coastal Commission
South Coast Area Office
301 E. Ocean Blvd., #300
Long Beach, CA 90802
RE: Coastal Development Permit Application CD2021-077 (Ritz Carlton
Residences)
Dear Mr. Schwing:
This letter is sent in response to your May 10, 2022, correspondence regarding Coastal
Development Permit Application CD2021-077 (Ritz Carlton Residences) (“Project”),
which is on the Planning Commission’s May 12, 2022, agenda.
A number of the items contained within your correspondence are a retreading of grounds
that have already been answered in the City’s August 23, 2021, response letter to District
Supervisor Zach Rehm (attached hereto); however, given the importance of this Project
in providing new housing in our community, we will address each of the points raised in
your correspondence again.
As we address the points in your correspondence, we want you to know that the City
Council shares Governor Newsom’s, and the Governor’s top housing advisor Jason
Elliott’s goal, to remove barriers and focus “the whole government, in terms of housing,
wildfire, environment…toward building more downtown-oriented housing.” This Project
is located in Newport Center, which is close to City Hall, adjacent to Fashion Island, and
serves as the central or “downtown” area of our City. Our City’s prior actions to adopt
City Council Policy K-4 (Reducing the Barriers to the Creation of Housing) and Director’s
Determination No. DD2021-01 (Accessory Residential Uses Within Resort Hotels) were
focused on removing barriers and increasing the City’s housing supply for current and
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future residents. This Project is the first application the City has received that seeks to
rely upon these prior City actions to create more housing.
We also want the California Coastal Commission’s staff to understand that the City is,
and has been, focused on securing an approved, certified, 2021-2029 General Plan
Housing Element as required by State law. The Project site was identified in the City’s
draft 2021-2029 Housing Element sites inventory as a location where the City will
accommodate a portion of its regional housing needs assessment (“RHNA”). The
Housing Element has not yet received final certification from the California Department of
Housing and Community Development (“HCD”). The City is cognizant that its disapproval
of a proposed housing project on an identified housing opportunity site might be viewed
unfavorably by HCD with respect to the City’s compliance with Housing Element Law.
Scrivener’s Error in the Public Notice
Thank you for bringing the scrivener’s error in the Project’s public notice to our attention.
We had already caught this scrivener’s error and were in the process of correcting the
record prior to receiving your correspondence. Specifically, the public notice inadvertently
had a carry-over line from a prior public notice that incorrectly stated:
“The project site is located within the appeal area of the coastal zone;
therefore, final action by the City may be appealed to the California Coastal
Commission.”
As you correctly observed in your correspondence, this Project is not located within the
California Coastal Commission’s appeal jurisdiction, and it is not located in proximity to
wetlands, streams or have components that would qualify this Project as a major public
works project. This minor scrivener’s error was not prejudicial, and the Staff Report and
Addendum correctly note that this Project is not located in the appeal area. The Project
site’s location outside the appeal area was also well documented by the City in the
administrative records for Director’s Determination No. DD2021-01 and City Council
Policy K-4. The City has already updated our website to correct this scrivener’s error,
has hand delivered updated notices to all properties within 300 feet of the Project site,
and has sent updated notices via e-mail to interested parties. We will also make a public
announcement correcting this scrivener’s error at the Planning Commission’s public
hearing on May 12, 2022.
CCC Allegation: Proposed Project is Inconsistent with the Zoning, Land Use, and
the LCP and Requires an LCP Amendment
In your correspondence, you attribute this alleged inconsistency to Director’s
Determination No. DD2021-01. The City notes the California Coastal Commission’s
staff’s renewal of its objections to Director’s Determination No. DD2021-01; however, for
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reasons already set forth in the City’s August 23, 2021 response letter to District
Supervisor Zach Rehm (attached hereto), the City has properly exercised its interpretive
discretion in concluding that resort residential accessory dwelling units are authorized for
this property without the need for a zoning, land use, or LCP amendment.
The City’s interpretation of its own land use plans, policies, and ordinances is entitled to
deference under state law. The courts have consistently determined that judicial review
is highly deferential to City interpretations because “policies in a general plan reflect a
range of competing interests” and the City “must be allowed to weigh and balance the
plan’s policies when applying them, and [the City] has broad discretion to construe its
policies in light of the plan’s purpose.” (Friends of Lagoon Valley v. City of Vacaville
(2007) 154 Cal. App. 4th 807, 816). And the City is the primary interpreter of the Zoning
Code. The City’s “view of the meaning and scope of its own [zoning] ordinance is entitled
to great weight….” (Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th
1173, 1193).
As you know, LCP Implementation Plan (“IP”) Section 21.12.020 grants the Community
Development Director the authority to interpret the LCP in a way that expands the
permitted uses, provided certain findings are made. Additionally, Newport Beach
Municipal Code (“NBMC”) Section 20.12.020(E) and LCP IP Section 21.12.020(E), allow
the Community Development Director to determine that an unlisted land use may be
allowed, again provided that certain findings are made.
The Director’s Determination made the required findings and interpreted the existing LCP
and related regulations to allow accessory residential uses at certain hotels. Both the
Director’s Determination and City Council Policy K-4 restrict these accessory residential
uses to certain resort hotel properties located outside of the California Coastal
Commission’s Appeal Jurisdiction, and limit the number of accessory residential uses to
no more than 30% of the approved hotel rooms. As provided in the LCP hotel definition,
hotels are allowed to have related accessory uses and those uses “may include
conference rooms and meeting rooms, restaurants, bars, and recreational facilities.” This
listing of accessory hotel uses is meant to be illustrative in nature and not exhaustive. In
this manner, the City is allowed discretion under the LCP to make interpretations about
other uses which may be appropriately classified within the hotel use category, which the
Director’s Determination and City Council Policy K-4 both do with regards to accessory
residential uses that are no more than 30% of the approved hotel rooms at a resort hotel
property.
The Director’s Determination is an appropriate use of the Community Development
Director’s authority under the LCP, and is consistent with past practice. Most notably,
Director’s Determination No. DD2017-002/PA2017-207 was issued on October 13, 2017
for an expansion of permitted uses in the Title 20 CV Zoning District and Title 21 CV
Coastal Zoning District related to the fire station located at 2708 Newport Boulevard,
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which is within the Coastal Zone. This interpretation occurred following certification of the
City’s LCP and expressly added a use that was not previously listed as a permitted use
in the CV Zoning District or the CV Coastal Zoning District.
The Director’s Determination was the final City action as of the City Council’s denial of
the appeal, and the statute of limitations has long since expired. The California Coastal
Commission staff’s disagreement with the Director’s Determination was noted in its first
letter on this topic, was considered during the course of the City’s resolution of the appeal,
and was found not to have merit for reasons set forth in the City’s August 23, 2021
response letter to District Supervisor Zach Rehm. Thus, the Director’s Determination is
now final, all applicable statutes of limitation have lapsed, and this Project is consistent
with the zoning, land use, and the LCP and does not require an LCP amendment.
CCC Allegation: The Project May Require a Commission-Approved Amendment to
Coastal Development Permit 5-07-085
The City has a certified LCP and this Project is not located in an appeal area or an area
of original jurisdiction. The suggestion that the California Coastal Commission has some
type of permitting jurisdiction over this Project is not supported by the existing CDP,
statutes, case law and deviates from your prior practice. First and foremost, CDP 5-07-
085 was an entirely new CDP for the adjacent Meridian Project, which was a 100%
residential project. CDP 5-07-085 was not an amendment to the 1983 CDP for the Marriott
Hotel (5-83-139 & 5-83-139A), which currently regulates the site. The 1983 CDP does
not include any language or condition requiring a future project to amend the 1983 CDP
or to submit to California Coastal Commission jurisdiction. In fact, Section IV(B) of that
1983 CDP notes that the California Coastal Commission certified the City’s LCP (Land
Use Plan) in May 1982 and the City is in the process of preparing the zoning and
implementation phase of its LCP. It states that after full certification of the City’s LCP, the
City will be the agency responsible for the issuance of coastal permits and that the
California Coastal Commission will be responsible for the review of appeals and the
issuance of coastal permits only in areas of original jurisdiction.
This line of reasoning is supported by the courts, which held in an unpublished appellate
opinion from the Sierra Club v. California Coastal Commission (2019, CA2/3) that the
California Coastal Commission’s “jurisdiction cannot be created by consent, waiver,
estoppel or fiat. (See Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990)
220 Cal.App.3d 35, 47.) Such an inquiry presents a question of law for resolution by the
court. (See Harrington v. Superior Court (1924) 194 Cal.185, 188; Marlow v. Campbell
(1992) 7 Cal.App.4th 921, 928.) The obligation to address the issue is of such importance
that we do so sua sponte. (E.g., Jennings v. Marralle (1994) 8 Cal.4th 121, 128; Four
Point Entertainment, Inc. v. New World Entertainment, Ltd. (1997) 60 Cal.App.4th 79, 81,
fn. 1; see Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 143
[subject matter jurisdiction may be raised for the first time on appeal].) As we now explain,
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the Legislature allocated jurisdiction to consider CDP applications in the first instance
based on whether a LCP had been certified.
[California Public Resources Code] Section 30519, subdivision (a) provides: “. . . after a
local coastal program, or any portion thereof, has been certified and all implementing
actions within the area affected have become effective, the development review authority
provided for in Chapter 7 (commencing with Section 30660) shall no longer be exercised
by the commission over any new development proposed . . . and shall at that time be
delegated to the local government that is implementing the local coastal program or any
portion thereof.”
A similar mandate is set out in [California Public Resources Code] section 30604,
subdivision (b), which additionally indicates Commission’s jurisdiction after certification is
appellate only. This section provides: “After certification of the local coastal program, a
coastal development permit shall be issued if the issuing agency, or the commission on
appeal, finds that the proposed development is in conformity with the certified local
coastal plan.”
The words of [California Public Resources Code] sections 30519, subdivision (a) and of
30604, subdivision (b) are clear and unambiguous: Upon certification of the elements of
a local coastal program, authority for issuance of coastal development permits no longer
rests with the Commission, but becomes the responsibility of the local agency…. The
word used to convey this transfer of jurisdiction is mandatory: “shall.” No exception to
this transfer of permitting jurisdiction appears in the cited statutes; nor does either statute
suggest there is a gap in timing of the transfer once its condition precedent—Commission
certification—is satisfied. Rather, whether read together or separately, the two statutes
establish that upon certification of a local coastal plan, Commission’s jurisdiction is
thereafter limited to consideration of appeals from determinations made by the local
jurisdiction in applying the certified local coastal plan.” (Emphasis added.)
Thus, the California Coastal Commission does not have permitting jurisdiction over this
Project. The City has a certified LCP, and the City will review this Project under its LCP
and determine whether to issue a new CDP or not.
CCC Allegation: Potential Cease and Desist Issuance Under Section 30810 of the
Coastal Act
We do not believe this section is applicable to the present circumstances, and it is
unfortunate that California Coastal Commission’s staff felt the need to raise this issue at
all. The City is processing this Project consistent with its certified LCP. As previously
stated, this Project does not require a CDP from the California Coastal Commission
because it is not located in the appeal area or the original jurisdiction area. Nor is this
Project inconsistent with any previously issued CDP from the California Coastal
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Commission. This Project is moving forward under the City’s certified LCP, and, if
approved, this Project will be conditioned to ensure on-going compliance with the City’s
certified LCP.
We appreciate your stated preference to resolve this matter in a cooperative manner. We
share that preference, and we trust that this letter responds to the concerns raised in your
correspondence and brings this matter to a close. Given the urgency of the housing crisis
and state law mandates such as RHNA and commercial and residential “as of right”
accessory dwelling units, the California Coastal Commission’s staff should refrain from
taking any action in this matter that would impede the City’s fulfillment of its legal and
policy obligations to support the production of new housing.
Sincerely,
___________________________
Seimone Jurjis, PE, CBO
Community Development Director
cc: Chair Lee Lowrey
Planning Commissioners
Deputy CDD Director Jim Campbell
Assistant City Attorney Yolanda Summerhill
Community Development Department
CITY OF NEWPORT BEACH
100 Civic Center Drive
Newport Beach, California 92660
949 644-3200 newportbeachca.gov/communitydevelopment
August 23, 2021
Mr. Zach Rehm, District Supervisor
California Coastal Commission South Coast Area Office
301 Ocean Blvd., #301
Long Beach, CA 90802
RE: Director’s Determination No. DD2021-01 (Accessory Residential Uses
Within Resort Hotels)
Dear Mr. Rehm:
This letter is sent in response to your August 20, 2021 correspondence regarding the
upcoming appeal of Director’s Determination No. DD2021-01 (“Director’s
Determination”), which is on the City Council’s August 24, 2021 agenda.
We appreciate the support you expressed for the City of Newport Beach’s (“City”) City
Council Policy K-4, Reducing the Barriers to the Creation of Housing, and its stated goal
to increase the City’s housing supply for current and future residents.
We would like to take this opportunity to address the questions raised in your
correspondence:
This [Director’s Determination], however, is not supported by the plain language of
the Local Coastal Program (LCP)…which defines [a] hotel use….”
The Director’s Determination and City Council Policy K-4 interpret the existing LCP and
related regulations to allow accessory residential uses at certain hotels. Both the
Director’s Determination and City Council Policy K-4 restrict these accessory residential
uses to certain resort hotel properties located outside of the Coastal Commission’s
Appeal Jurisdiction, and limit the number of accessory residential uses to no more than
30% of the approved hotel rooms. As provided in the LCP hotel definition, hotels are
allowed to have related accessory uses and those uses “may include conference rooms
and meeting rooms, restaurants, bars, and recreational facilities.” This listing of
accessory hotel uses is meant to be illustrative in nature and not exhaustive. In this
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manner, the City is allowed discretion under the LCP to make interpretations about other
uses which may be appropriately classified within the hotel use category, which the
Director’s Determination and City Council Policy K-4 both do with regards to accessory residential uses that are no more than 30% of the approved hotel rooms at a hotel
property.
The Community Development Director does not have the authority to change land
uses or interpret the LCP differently from the plain language and designated uses.
The appropriate process for changes to land use regulation in the coastal zone is
an LCP amendment….
LCP Implementation Plan (“IP”) Section 21.12.020 grants the Community Development
Director the authority to interpret the LCP in a way that expands the permitted uses,
provided that certain findings are made. The Community Development Director made said
findings, which are included in the Staff Report for the City Council’s agenda. Additionally,
Newport Beach Municipal Code (“NBMC”) Section 20.12.020(E) and LCP IP Section
21.12.020(E), clearly allow the Community Development Director to determine that an
unlisted land use may be allowed, again provided that certain findings are made.
The Director’s Determination is an appropriate use of the Community Development
Director’s authority under the LCP, and is consistent with past practice. Most notably,
Director’s Determination No. DD2017-002/PA2017-207 was issued on October 13, 2017
for an expansion of permitted uses in the Title 20 CV Zoning District and Title 21 CV
Coastal Zoning District related to the fire station located at 2708 Newport Boulevard,
which is within the Coastal Zone. This interpretation occurred following certification of the
City’s LCP and expressly added a use that was not previously permitted in the CV Zoning
District or the CV Coastal Zoning District.
…[W]e can schedule a Dispute Resolution hearing before the Coastal Commission
consistent with Section 21.50.050(B)(4) of the LCP.
As clearly explained in Footnote 8, Table 21.50-1 (Review Authority) of LCP Section
21.50.020(A), “Appeal procedure for interpretations shall only apply to interpretations
made by the Director on the determination of whether a development is categorically
excluded, exempt, non-appealable or appealable to the Coastal Commission according to the dispute resolution process in compliance with Section 21.50.50(B).” First and
foremost, there is no coastal development permit application or project before the City at
this time; therefore, LCP Section 21.50.050(B)(4) is not applicable in this instance.
Instead, the Director’s Determination is contemplated by, consistent with, and in
furtherance of, City Council Policy K-4. Both City Council Policy K-4 and the Director’s
Determination require any project located within the coastal zone to obtain a coastal
development permit. Thus, there is no question as to whether a future project is subject
to a coastal development permit. If a project is located in the coastal zone, it requires a new coastal development permit, period. Similarly, both City Council Policy K-4 and the
Director’s Determination exclude properties that are located within the Coastal
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Commission’s Appealable Jurisdiction. Thus, there is no question as to whether a future
project is appealable to the Coastal Commission. If a project is located within the Coastal
Commission’s Appealable Jurisdiction it is not eligible for consideration under City Council Policy K-4 or the Director’s Determination.
Again, thank you for supporting City Council Policy K-4 and sharing your thoughts about
the Director’s Determination. The clarifications provided above should bring this matter to
a close. We share the California Coastal Commission’s goals of increasing the State’s
housing supply, and we believe the Director’s Determination is an important first step
towards this worthy and critical goal.
Sincerely,
cc: Mayor Brad Avery
City Council Members
Grace Leung, City Manager