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HomeMy WebLinkAboutSS3 - Measure S Guidelines0 • January 23, 2001 Study Session Item No. SS3 CITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY TO: Mayor & Members of the City Council FROM: Robert H. Burnham, City Attorney RE: Measure S Guidelines Matrix/Straw Votes DATE: January 23, 2001 BACKGROUND/RECOMMENDATION On January 9, 2001, the City Council directed this office to prepare a "matrix" of the key issues raised during the discussion of proposed guidelines to implement Section 423 of the City Charter as authorized by Measure S. The matrix is attached to this memo Attachment A). This memo discusses each of the issues identified in the matrix and makes recommendations when appropriate (recommendations shown by designating the "option "). Staff recommends the City Council straw vote the issues identified in the matrix and direct staff to prepare guidelines for Council review /approval on February 13, 2001. PEAK HOUR TRIPS 1. Trip Rate of Land Use or Adjacent Street Traffic The draft guidelines used the average trip rate for the peak hour of the adjacent street traffic as a factor in determining the peak hour trips of an amendment. Mayor Adams suggested that the guidelines use the peak hour of the land use — which may or may not be the same as the adjacent street. As Mayor Adams indicated, we should be using a rate that reflects the maximum amount of traffic generated by the land use and one that most accurately reflects the impact of an amendment on the capacity of the system. The use of the peak hour rate of the land use also ensures consistent treatment of similar amendments. Staff is recommending use of the peak hour rate of the land use(s) not the adjacent street. (Option A) 2. "Average" Trip Rate. The ITE Manual identifies two peak hour trip rates — the mathematical average of the data from studies and the "best fit curve" which incorporates the data trend (higher or lower) as the size of the project increases. Staff has no recommendation. • 3. "Maximum Traffic Allowed Uses Could Generate." Section 423 uses the term "maximum amount of traffic that allowed uses could generate" in describing a "major amendment" that would require voter approval. The Land Use Element uses three very broad categories in specifying allowed floor area for commercial land uses. For example, the peak hour trip rates for commercial land uses in the "Administrative, Professional and Financial Commercial" category • range from 4.36/1000 square feet for medical office to 1.56/1000 square feet for regular office and 1.24/1000 square feet for research and development. As a general rule, an amendment is only one of the approvals required of a project and the applicant has submitted detailed information about the proposed use(s) and structure(s). In those cases the City has typically prepared environmental and /or zoning documents that, when approved, clearly identify permitted uses. Staff is recommending that peak hour trips be calculated on the basis of the highest rate for any use allowed by the Land Use Element or, if the City has the approved only specific uses, the highest rate of any permitted use. (Option B) 4. Moming and /or Evening Rate. Staff is recommends that peak hour trips be calculated using the higher of the morning or evening weekday rate. (Option A) 5. Table of Trip Rates. Mayor Adams suggested that the guidelines include a table that establishes the peak hour rates for most land uses based on information in the ITE Manual. The table would be prepared by staff and submitted to the Council for approval. In the alternative, the peak hour rates could be determined by the City Council after approval of the amendment when the specific uses have been identified and the Planning Director's report has been submitted to the City Council. Staff has no recommendation. FLOOR AREA • 1. Measurement. The draft guidelines proposed defining "floor area" in terms of the definition (there are four different ones) used in the ITE Manual as the "independent variable for the land use(s) under consideration. Use of the ITE Manual definition would ensure an accurate calculation of trips by applying the floor area definition used to calculate the ITE trip rate. Another option — and one that may be easier to administer since staff is familiar with it - is to use the definition of "gross floor area" from the Municipal Code (Section 20.63.030(f)). Staff recommends use of the ITE Manual definitions. (Option A) 2. Residential Uses. The draft guidelines do not use the "floor area" of any residential use as a basis for determining if Section 423 requires voter approval of a residential use amendment. Staff recommends this approach. (Option A) 3. Parking Structures. Staff is recommending against including parking structures in the calculation of "floor area." Parking structures do not add trips and the stated purpose of Measure S is to require voter approval of any amendment "that may significantly increase allowed traffic." The ITE Manual and Municipal Code definitions of "floor area" do not include parking structures. Planners and architects do not use "floor area" as a way of describing the size of parking • structures. Staff is recommending that parking structures not be included in the calculation of floor area. (Option A) I ADMINISTRATION • 1. "Look Back" Provision. The City Council has at least three options with respect to the "look back" provision. The City Council can apply the provision to (a) amendments approved after 12/15/00; (b) to amendments approved after July 30, 1999 (publication of Notice of Intent to Circulate); or (c) to amendments approved (by the Council but not the voters) during the ten -year period prior to approval. Staff has recommended using 12/15/00 as the "start date" but the other options are also consistent with Measure S (copy of memo analyzing options is Attachment B). (Option A) 2. Trip Reductions. There has been a suggestion that the City Council adopt a guideline that gives a statistical area "credit' for amendments that reduce, peak hour trips. However, Section 423 specifically states that the "look back" provision requires the consideration of increases in traffic, density and /or intensity. Staff recommends against giving credit for reductions because there is no wording in Measure S that supports that interpretation. (Option A) 3. General Plan Data. Some Measure S supporters have suggested the City Council adopt a policy that requires "the retention of the specificity of the current General Plan." Staff understands the rationale for the request but such a policy would be a de facto amendment of the General Plan — without the required hearings and notice. Mayor Adams suggested that the Guidelines include a table that describes Land Use Element entitlement in each statistical area as of the earliest date on which the "look • back' provision could be applied. The City Council would determine if an amendment requires voter approval based on the information in the then current table. (Option A) • 4. Amendments Pending a Vote. Amendments may be approved by the City Council while other amendments are awaiting voter approval or rejection. Measure S proponents have suggested that amendments awaiting a vote not be considered for purposes of the 'look back" provision and staff agrees. Voter approval of a pending amendment would mean it is not considered as a prior amendment and voter rejection makes the amendment moot. (Option A) S. Applicant Information. The draft guidelines proposed that the process to determine if voter approval is required of an amendment be initiated after approval. Staff does not believe that Section 423 considerations should be a factor in the decision to approve or reject an amendment. However, after hearing the testimony, staff acknowledges that an applicant should be provided with a copy of the guidelines and relevant information upon filing. The guidelines could direct staff to provide the applicant (at filing) with an "opinion" on possible voter approval. (Option B) Robert Burnham 3 Attachment A Measure S Guidelines Matrix 1. Peak Hour Tries Issue Option A Option B Other Trip Rate of Land Use or Average Peak Hour Average Rate of Starts 7/30/99 Adjacent Street Traffic Rate of Land Use Adjacent Street "Average" Trip Rate Numerical Average Best Fit Curve "Maximum Traffic Highest Rate of any Option A Unless Allowed Uses Could Permitted Use in Only Specific Generate Category Uses Authorized Morning or Evening Higher of Morning or Add Morning and Weekday Rate Evening Weekday Evening Pending Vote Rate Weekday Rate Table of Trip Rates Guidelines Include City Council Applicant Trip Rate Table for Decides Trip Rate Information Most Land Uses After Approval 2. Floor Area Issue Option A Option B Other Measurement Use one of 4 ITE NBMC Definition Starts 7/30/99 Manual Definitions of Gross Floor Area Residential Use Floor Area Not Floor Area Relevant Relevant in Peak Hour Trips Parking Structure Don't Include as Include as Floor Floor Area Area 3. Administration Issue Option A Option B Other Look Back Starts 12/15/00 Go Back 10 Years Starts 7/30/99 From Amendment Trip Decreases No Credit for Trip Credit for Reduction Reductions in Peak Hour Trips General Plan Data Guidelines Include Compare to Then Measure S General Current General Plan Entitlement Plan Provisions Table Pending Vote Don't Count When Count Amendment Vote Pending Until Vote Applicant Opinion & Policy to Provide Policy Only Information Applicant at Filing at Filing • • ATTACHMENT B CITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY TO: Mayor & Members of the City Council FROM: Robert H. Burnham, City Attorney RE: Measure S Guidelines "Look Back" Provision DATE: January 23, 2001 The purpose of this memo is to explain, in greater detail, my reasons for drafting proposed guidelines that apply the "look back" provision of Section 423 only to • amendments approved by the City Council after the effective date (December 15, 2000). The "look back" provision requires the traffic, density, and /or intensity of the amendment to be added to "eighty percent of the increases resulting from other amendments affecting the same neighborhood and adopted within the preceding ten years." I acknowledge that the "look back" provision can be interpreted so that all amendments within ten years prior to the date of adoption — whenever that may be — are considered for purposes of deciding if voter approval is required. In fact, that interpretation is probably more consistent with the actual wording of Measure S than the interpretation that I have proposed. However, I believe that the interpretation in the draft guidelines is also consistent with the wording and the stated purpose of Measure S. The guidelines must be consistent with the purpose and intent of Measure S. According to Measure S, the purpose is: "to give the voters the power to Preven t 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." Measure S recognizes, and accepts, that the current General Plan allows for some . "additional growth" and is intended only to give the voters the "power to disapprove any proposed General Plan amendment that may significantly increase traffic congestion beyond that which could already occur...." This provision suggests that amendments approved before the effective date (or at least before the Notice of Intent to Circulate the 5- Petition) were not a concern of voters. This conclusion is supported by the findings in the Planning Center Report - that amendments approved by the City Council during the 1990's actually reduced peak hour traffic. • Measure S establishes the threshold for determining if an amendment will "significantly increase" traffic. The determination of "significance" does require inclusion of 80% of the amendments adopted within the preceding ten years. However, the clear intent of the "look back" provision is to ensure "that major changes do not escape scrutiny by being presented piecemeal as a succession of small changes." The provisions of Measure S that follow the "look back provision also suggest that the intent is to apply to amendments approved after the effective date. According to Measure S, the "look- back" provision does not apply to "other amendments" that were "approved by the voters." The voter approval requirements of Measure S clearly apply prospectively and this language suggests that the "other amendments" to be considered pursuant to the "look back" provision are those approved after the effective date. The City Council would clearly not be acting contrary to Measure S by adopting guidelines that require consideration of all amendments in the same statistical area approved within ten years before adoption of the amendment by the City Council. That interpretation is probably more consistent with the actual language of Measure S. However, I also believe the City Council would not be acting contrary to Measure S by adopting guidelines that apply the "look back" provision only to amendments after the effective date (or after July 30, 1999 — the date on which the Notice of Intent to Circulate was published). • Robert Burnham • 0 January 9, 2001 lbnu �ldJ�Jis s 1,. Study Session Item No. SS3 d`J a CITY OF NEWPORT BEACH TO: Mayor & Members of the City Council FROM: Robert H. Burnham, City Attorney RE: Measure S Guidelines DATE: January 9, 2001 Introduction Measure S "encourages" the City Council to adopt guidelines to "implement' the provisions of the newly enacted Section 423 of the City Charter (Section 423). In general terms, Section 423 requires voter approval of certain amendments of the Newport Beach General Plan (amendments). The guidelines must be consistent with the purpose and intent of Measure S and may be adopted only after public notice and hearing. Implementing guidelines must be approved by "not less than six affirmative votes of members of the City Council." Staff has prepared, for Council review and consideration, the proposed guidelines that accompany this memo. This memo describes the general principles staff followed in drafting the guidelines and the rationale for various provisions. General Principles Staff drafted the proposed guidelines with certain general principles in mind. We believe that guidelines are generally appropriate only to provide clarity and implementing procedures. The guidelines must be consistent with the stated purpose and intent of Measure S and respect the plain meaning of the words in Section 423. Finally, guidelines are not an appropriate vehicle for making Section 423 more or less effective or more or less restrictive. Discussion of Proposed Guidelines The guidelines consist of two sections — definitions and administration. The following is an explanation of the rationale for certain provisions in each section 1. Definitions The proposed guidelines rely heavily on a multi - volume publication of the Institute of Transportation Engineers entitled 'Trip Generation" (ITE Manual). Measure S requires use of the ITE Manual to calculate "peak hour trip generation rates" and the proposed guidelines use the ITE Manual definitions of key terms in the measure such as "peak hour trips" and "Floor area." The use of ITE Manual definitions and terminology will ensure a consistent and fact -based determination of the "peak hour trips" and "floor area" of each amendment of the General Plan (amendment). The term "peak hour trips" is defined as the "average trip rate for the peak hour of the adjacent street traffic" multiplied by the quantity of the relevant "unit of measurement" for land use(s) proposed in the amendment. Rich Edmonston has suggested this definition because it is the most relevant measurement of traffic impact and is consistent with our current methodology of analyzing traffic impacts. The Council could define "peak hour trips" by reference to the "average trip rate of the generator" — a rate that tends to be somewhat higher than the rate staff is proposing. In most cases, a non - residential project is likely to reach the "floor area" threshold in Section 423 before exceeding the peak hour trip threshold. The relevant "unit of measurement" for a residential project is a "dwelling unit" and the relevant unit of measurement for most non - residential uses is "gross floor area." The calculation of peak hour trips for land uses that don't use dwelling units or floor area as "units of measurement" (such as hotels, golf courses and marinas) will be based on the "unit of measurement" specified in the ITE Manual. The ITE Manual has four (4) "Floor area" definitions and uses a different definition for "shopping centers" (gross leasable area) than office buildings (gross floor area). The proposed guidelines define floor area in the same manner as the ITE Manual and clarify that "floor area" is not a factor in deciding if a residential use amendment requires voter approval. The definition of "prior amendment" relates to language in Section 423 that has been termed the "look back" provision. The "look back" provision requires that "eighty percent' of the "increases from other amendments affecting the same neighborhood" that were approved by the City Council in the preceding ten years be added to the amendment for purposes of determining if voter approval is required. Staff is proposing to define "prior amendment" as one approved by the City Council after the effective date of the measure (December 15, 2000) and this would mean that amendments approved before December 15, 2000 would not be considered in deciding if an amendment requires voter approval. Staff is proposing this definition of "prior amendment" for three reasons. First, the "look back" provision is intended to "make sure that major changes do not escape scrutiny by being presented piecemeal as a succession of small changes" and " this protection against "piecemealing" became, necessary only after the effective date. Second, laws typically apply prospectively. Finally, this interpretation is consistent with another Measure S mandate in that it reduces the potential for a successful legal challenge. Some Measure S supporters have suggested that the "look back" provision should "begin" on the date that the notice of intent to circulate the measure was published (July 30, 1999). There is support for this interpretation in Measure S. Measure S says that it is intended, "to the maximum extent permitted by law", to "apply to all amendments" approved after the "filing of the Notice of Intent To Circulate Petition." However, the one amendment (Extended Stay America — GPA 99 -2) approved by the City Council after July 30, 1999 was initiated before that date, is presently under construction (vested) and resulted in a substantial reduction in peak hour trips. Staff is recommending use of the effective date of Section 423 for purposes of the "look back" provisions to eliminate any legal issues that could arise from the application of Measure S to GPA 99 -2 or subsequent amendments approved in that statistical area. 2. Administration The Guidelines propose a procedure for determining if voter approval is required of an amendment approved by the City Council. The procedure is intended to provide the City Council with all of the information necessary to determine if voter approval is required of a particular amendment. The process of deciding if voter approval of an amendment is required by Section 423 should begin after City Council approval — rather than as part of the approval process — because the City Council retains discretion relative to the density or intensity of any amendment until final approval. Other Possible Guidelines Staff considered, but did not prepare, guidelines that would address issues that came to light during the preparation and discussion of the Planning Center Report (aka Douglas Report). Staff is not proposing a guideline that would give a credit for amendments that reduce peak hour trips for purposes of the 'look back" provision. Measure S specifically states that eighty percent of the "increases" resulting from prior amendments is to be added to the trips and density or intensity of the current amendment. A guideline giving credit for prior amendments that reduce trips would be consistent with the intent of Measure S because it might encourage such amendments. However, Staff chose not to prepare or recommend a guideline giving credit for trip reductions because Measure S specifically refers to "increases" rather than "changes" or "adjustments." Staff considered, but did not prepare, a guideline that would eliminate the need for voter approval of amendments that — like the amendment processed for the "One Ford Road " project - reduce peak hour trips but technically constitute a "major amendment' because they exceed the density or intensity threshold. The "One Ford Road" amendment substituted 500 dwelling units for more than 1,330,000 square feet of industrial entitlement and reduced peak hour traffic by 1145 trips. However, a conservative interpretation of Section 423 would require voter approval of the amendment because of the "additional" dwelling units. Burnham DRAFT COUNCIL POLICY A -18 On November 7, 2000, the Newport Beach electorate approved Measure S (Copy of Measure S accompanies this Policy). Measure S amended the Newport Beach City Charter by adding 423 to the Newport Beach City Charter. In general terms, Section 423 requires voter approval of certain amendments of the Newport Beach General Plan (amendment). Measure S "encourages" the City Council to adopt implementing guidelines that are consistent with its purpose and intent. This Policy constitutes the guidelines adopted by the City Council pursuant to the authority and procedures specified in Measure S. Definitions The definitions and terms in this Section, when surrounded by quotation marks, are intended to conform to the definitions in, and terminology of, "Trip Generation" a multi - volume publication of the Institute of Transportation Engineers (ITE Manual). The ITE Manual provides an "average trip rate" for hundreds of land uses and is the primary reference used by transportation professional seeking information on trip generation rates and related data. 1. The term "peak hour trips" shall mean a number equal to the "average trip rate for the peak hour of the adjacent street traffic" multiplied by the quantity of the relevant "unit of measurement' for the land use(s) for the amendment as approved by the City Council. In Newport Beach, the peak hour of the adjacent street traffic is traditionally between 7:00 a.m. to 9:00 a.m. and 4:00 p.m. to 6:00 p.m. 2. The term "floor area" shall mean whichever of the following four definitions — "gross floor area ", "gross leasable area ", "gross rentable area" or net "rentable area" — is specified by the ITE Manual as the "unit of measurement" in expressing the trip generation rates of the land use(s) proposed by the amendment. In the event the ITE Manual does not utilize any of the four definitions as a unit of measurement, the term "floor area" shall mean "gross floor area" as defined in the ITE Manual. 3. The term "dwelling unit' is defined as specified in the Newport Beach Municipal Code (Code) and applies only to a residential use. 4. The term "residential use" shall mean any single - family residential use, and two- family use, any multifamily residential use, any group residential use and any limited residential care use but does not include a day care facility or a convalescent facility. 5. The term "non- residential use" shall mean any land use other than a residential use that generates any peak hour trips and includes the 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 Code. 6. The term "prior amendment" shall mean any amendment affecting property within the same statistical area as the amendment that was approved by the City Council after December 15, 2000 and was approved within ten years prior to the date the City Council approved the amendment. The term prior amendment excludes any amendment approved by the voters after City Council approval. 7. The term "the amendment" shall mean an amendment that: (a) was approved by the City Council subsequent to December 15, 2000; (b) modifies the number of dwelling units, floor area or type of land use (including any amendment that increases peak hour trips) when compared to the general plan prior to City Council approval of the amendment; and (c) is being evaluated pursuant to this Policy to determine if the provisions of Section 423 require voter approval. Administration The following procedure shall be utilized for purposes of determining if the amendment will require voter approval pursuant to Section 423. 1. The Planning Director shall, within five (5) working days after City Council approval of the amendment prepare a report that contains the following information: (a) If the amendment authorizes, or relates to, a residential use, the maximum number of dwelling units authorized by the general plan for all of the property that is the subject of the amendment before and after City Council approval of the amendment. (b) If the amendment authorizes, or relates to, a non - residential use, the maximum amount of floor area authorized by the general plan for all of the property that is the subject of the amendment before and after City Council approval of the amendment. (c) If the amendment authorizes, or relates to any non - residential use or a residential use, the number of peak hour trips that would be generated by all of the entitlement authorized by the general plan for all the property that is the subject of the amendment before and after City Council approval of the amendment. The number of peak hour trips shall be calculated in accordance with this Policy and the ITE Manual. The Planning Director shall, after consulting with the Director of Transportation and Development Services, determine the ITE Manual land use(s) most similar to the land use(s) authorized by the amendment if the ITE Manual does not provide peak hour trip generation information specific to one or more of the land use(s) authorized by the amendment. The number of peak hour trips generated by the amendment shall be determined on the basis of, but shall not be less than ninety -five percent of, the most similar land use in the ITE Manual. (d) A table that identifies the increases in floor area (for non - residential uses), dwelling units (for residential uses) and peak hour trips (any land use) resulting from, and the dates of, prior amendments. (e) A table that calculates eighty percent (80 %) of the increase, if any, in floor area (non - residential uses), dwelling units (residential uses) and peak hour trips (all land uses) resulting from all prior amendments. 2. The Planning Director shall submit the report to the City Council within thirty (30) days after City Council approval of the amendment. 3. The City Council shall review the report and determine if, based on the report and any other relevant evidence presented, the amendment requires voter approval pursuant to Section. The City Council shall submit the amendment to the voters if: (a) the amendment relates to a non - residential use and authorizes an increase in floor area for the property that is the subject of the amendment that exceeds forty thousand (40,000) square feet when compared to general plan before approval of the amendment; or (b) the amendment relates to a residential use and authorizes an increase in the number of dwelling units for the property 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 (c) the amendment modes the type or amount of residential or non- residential use specified for the property that is the subject of the amendment such that the land use(s) authorized by the general plan after the amendment generates more than one hundred peak hours trips than the land use(s) authorized before the amendment. 4. In the event the City Council determines that the amendment requires voter approval, the City Council shall, within sixty days after the determination that an election is required, schedule a date for the adoption of a resolution calling an election on the amendment. The City Council shall, on the date set for adoption of the resolution, schedule an election on the amendment at the next regular municipal election (as defined by the Newport Beach Charter) or at a special election if the applicant for the amendment has entered into a written agreement with the City to share the costs of the special election. 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 ":) 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: (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 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. ALLAN BEEK 2007 HIGHLAND DREt E i d tryVPORT BEACH CA 92660 -4407 January 22, 2001 Honorable Mayor and Members of the City CounVj: A 22 M1 :16 Several issues have been submitted to the City re o yo s aff report. This letter is to give you timely notice of these issues, so you can be prepare( Paw tomorrow if you choose. [The comments below reflect my personal opinions on the Jan. 23 staff report and guidelines. I submit these comments as a member of the public. My personal comments have also been submitted to the Greenlight Steering Committee, which has not formulated a position on the Jan. 23 report as of this time.] 80% OMITTED On page 3 of draft Council Policy A -18, part 1(e) computes the 80% accumulation, but part 3(a)(b)(c) fails to use this accumulation in making the test. (I have submitted a draft which corrects this.) TWO WAYS TO USE AREA The discussion of "FLOOR AREA 1. Measurement" fails to recognize that floor area is used in two different ways. The first is to provide a method of computing peak hour trips. For this purpose, the ITE definition proposed in Option A is appropriate. The second is to compare against the 40,000 square foot threshold of Section 423. For this purpose, the gross floor area proposed in Option B is appropriate and has a precedent in the Land Use Element "Major Land Use Plan Designations," Commercial: "The square footage limitations set forth in this plan are gross square feet." SHORTCUTS It has been suggested that major amendments go directly to the voters, bypassing the EIR, EQAC review, and full public hearings. The Council has always had the option of taking this shortcut, and has never used it. Supporters of Measure S strongly oppose this option. Opponents of Measure S severely attacked this possibility during the campaign. With both sides agreed that shortcuts are undesirable, it would be appropriate to include rejection of this option in Council Policy A -18. SIMULTANEOUS AMENDMENTS In case two (or more) amendments affecting the same statistical area are adopted by the same vote of the Council, a rule is needed to determine which is "prior" to the other. One possible rule is suggested in the next item. PRIOR AMENDMENT Definition 6 of Council Policy A -18 needs rewriting for clarity. For example: Definition 6 The term 'prior amendment" shall mean any amendment which: (a) Affects property within the same statistical area as the amendment under consideration. (b) Has City Council approval before or at the same time as the amendment under consideration, and if at the same time, has air earlier GPA number. (c) Has City Council approval less than ten years before the amendment under consideration. (d) Has City Council approval after December IS, 2000. (e) Was not placed on the ballot for a vote of the people. ENFORCEMENT Applying for an "Industrial' rather than an "Office" use avoids problems with EIR, TPO, and 423. There is at present no satisfactory way to stop conversion of the building to offices after project completion. Staff is to be congratulated on their innovative approach to the 500 Superior project. The City Council, Planning Commission, and staff should give attention to finding a lasting solution to this problem. The TPO made this problem serious; now Section 423 has made it severe. My recommendations for straw votes are on the other side of the page. I recommend Option A except for Peak Hour Trips 1, Floor Area 1 and 3, and Administration 2 and 5. Trips 1 "Peak Hour" This universally means the peak hour of the city streets. That is when we are on the streets. That is the time we are worried about. To use peak hour of the project can cause extra ballot measures, so I am surprised that there is any controversy. Area 1 Measurement As noted on the other side of the page, there are two ways to use area, so this issue should be divided in two. Option A for computing trips. Option B for the 40,000 test. Area 3 Parking Structures One of the three cornerstones of 423 is to control intensity, meaning the bulk and mass of structures. Parking structures do as much to obstruct light and views as other structures. The zoning law includes parking structures (with a deductible) in the floor area ratio calculation in many zones. They should count like any other structure. This is for the 40,000 test only. Parking structure area should not be used in calculating trip generation. Admin 2 Credit for negatives Section 423 neither specifies nor prohibits credit, so we must look to fair play for guidance. Decreases are simply negative increases. It only seems fair to count negatives as well as positives. To prohibit credit can cause extra ballot measures, so I am surprised that there is any controversy. (Note: This is a very minor matter. It rarely comes up, and may never cause an extra ballot measure.) Admin 5 Information There is some misunderstanding here; neither option addresses the issue. The point is that the dwelling units, peak hour trips, and floor area both before and after a proposed amendment should be shown on the staff report right from the start . The Planning Commission and City Council should have full knowledge of what they are voting on. It would also be reasonable to show the 80% accumulation from prior amendments, so the applicant can know his status on going to the voters. There must be a misunderstanding, because the staff report's apparent claim that the amount of increase "should not be a factor in the decision to approve or reject an amendment" is simply not credible. Comment on Trips 3 "Maximum" The discussion seems to miss the point that the Land Use Element is not tied to any specific project. Section 423 calls for the maximum number of peak hour trips that could be generated by any use consistent with the land use designation. This calls for disregarding the project that triggered the amendment request, and looking for the worst case possible. For example, suppose the Land Use Element permits 64,000 sq. ft. of light industrial use and at present there is a building of 32,000 sq. ft. on the parcel. A request is made to change the permitted use from Light Industrial to Shopping Center. This might be submitted (incorrectly) as: Existing 32,000 Light Industrial 1 peak trip per 1000 32 peak trips Requested 32.000 Shopping Center 3.75 peak trips per 1000 120 Increase 0 88 These increases are both under the 423 thresholds, so the amendment would seem not to go to the voters. But a correct staff report would show: Entitled 64,000 Light Industrial 1 peak trip per 1000 64 Requested 64.000 Shopping Center 3.75 peak trips per 1000 240 Increase 0 176 The analysis must not ignore the owner's right to expand the building to 64,000 sq. ft. with no further general plan amendments, even though that expansion is not part of the current request. Using the maximum possible, the increase is over 100 trips and this amendment must go to the voters. PROM : Panasonic TAD /FAX PHONE NO. . Jan. 22 2001 03:01PM Pi RECEIVED "Rt;O,4 WD AFTER AGENDA January 22, 2001 401 A 22 P1 '59 Dear Mayor Adams and City Couneilpersons: �L 0"TY �F kEW "O T OEACH I would like to again request that parking garages be included under the Measure S guidelines being developed by the Council. Discussions with City Attorney Bob Burnham indicated that he was opposed to including parking garages, thus leading to this second letter. Mr. Burnham indicated that he felt that Measure S was really a traffic control initiative. While it is certainly true that the initiative was weighted toward traffic, the title alone belies his position: Protection from Traffic and Density Initiative. Additionally, an initiative dedicated only to impacting traffic would not have required anything beyond limitations on traffic generation by any given development. Instead, Measure S deals with traffic, intensity and density of development. Clearly, voters were mandating changes in all three spheres, instead of just dealing solely with traffic. Another argument that has been used against including parking garages is that the term `floor area' does not apply to parking garages. In response, I will quote from the August 1998 printing of the Land Use Mement of the General Plan, page 24, paragraph 6. "Floor area ratios or speciTe,floor area limns, in addition to being a defined intensity limit for land thee, can also be used to address the physical bulk of buildings. This `visual intensity' issue has become important. particularly in the older commercial areas where lot sizes are relatively small. There%re,floor area ratios or limits identified for most commercial areas include the /i!oor area devoted to covered, above grade narking structures..." (emphasis added) The General Plan does consider the visual bulk of parking garages in certain areas of the city, and does use the term `floor area' to describe them. Clearly, the inclusion of parking garages into the Measure S guidelines is consistent with the General Plan and with voter intent. Please consider including parking gaffes in your guideline. 949 - 722 -6699 BENT BY: ST CLAIR COMPANY; 9494776396; JAN -23 -01 16:12; PAGE 2/3 Ae r„^m 'I'M EMMAGFINDA M t7i, January 23, 2001 Mr. Gary Adams,Mayor 0 =T City of Newport Beach 3200 Newport Boulevard�'+�.� fT1 Newport Beach, CA rn N OC9 W Re: Planning Commission Approval of Use Permit No. 3679 (500 Ste} sior) A M n yr ;r Dear Mr. Mayor and members of the City Council: The purpose of this letter is to provide some background on the above project and to inform the Council of the commitment of the St. Clair Company to comply with the conditions of approval for the above use permit approved by the Planning Commission at it's meeting of January 18, 2001. The old Hughes/Raytheon project was purchased by the St. Clair Company and a determination was made to create a development which would upgrade and greatly improve the abandoned facility, and to be consistent with the General Plan and zoning. As a result of a December presentation to the Commission and the staffs desire to expand the response to comments document, the item was continued to January 4, 2001. Our representative, Carol Hoffman worked closely with EQAC to insure that the comments of that body were fully addressed. At the January 15th meeting of EQAC, the Chairman of EQAC complimented the St. Clair Company and it's representatives for their thoroughness in addressing the Committee's concerns. At the Planning Commission meeting of January 18, the Planning Commission deliberated extensively to insure that appropriate conditions of approval were established. They added a limit on the number of employees, they required that the Planning Director shall review all building plans and future tenant improvement plans and make a finding that the uses are consistent with the Municipal Code and that commercial and office uses are ancillary and accessory to the research and development uses and the project is in conformance with the Traffic Phasing Ordinance approval. There was no public testimony against the project and no one from either the Greenlight committee or from EQAC spoke. Cdhtornie 4UU1 MacArthur Boulevard, SUINiUO. Newport Brach. Callfomia Y[66U Y451/477-65YY rax Y4Y/477 -65Y6 Colorado SENT RY: ST CLAIR COMPANY; 9494776396; JAN -23 -01 16:12; PAGE 3l3 We understand that you may receive a request to call this item up before the City Council in order to examine the Conditions of approval, possibly for consideration of such conditions to be used in the Greenlight guidelines. it would be our request that the item not be called up, given the length of time the project has been under review and the care with which the planning Commission addressed the key issues. We have played by the rules, we are paying interest at a rate of $10,000 a day because we have closed escrow on the property, we are Consistent with all the requirements of the General Plan and zoning, and we would like to proceed. We will be happy to work with the Council or any committees to assist in the review of our project and It's conditions but we would appreciate your support of the actions of the Planning Commission. I am sorry we are unable to attend either the study session or the Council meeting but my representative, Carol Hoffman and I will be available later this week to clarify any outstanding questions you may have. Sincerely, r5jC_ Mark C. Barker Director of Commercial Development cc: Carol Hoffman Greenlight P.O. Box 100 Balboa Island, CA 92662 Mayor Garold Adams and Members of the Newport Beach City Council January 23, 2001 City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Dear Mayor Adams and Members of the City Council: Greenlight is appreciative of the work of the City Staff, Mayor Adams and Council Members to develop a fair and workable set of guidelines for the administration of Measure S. Greenlight submits its official position on the Measure S Guidelines and Matrix dated January 23, 2001 in order to aid you in your deliberations. The fundamental overall objectives of Measure S are Protection From Traffic, Density & Intensity. In drafting Measure S it was Greenlight's clear intent to protect the character of the city as well as to address traffic congestion. These remarks support those objectives. The following section comments upon the points made in the Staff Report and Matrix on Measure S Guidelines. Greenlight recommends adoption of the Option whose letter is shown Peak Hour Tri 1 - Option B+ - Trip Rate of Adjacent Peak Hour Traffic The concern is the peak hour of the city streets, not the project. The concern is weekday peak hour on the city streets, not weekends. We recommend use of peak hour of the city streets on weekdays. 2 — Option A — Average Trip Rate 3 — Option B —Maximum Traffic Allowed Uses Could Generate" The definition of any GPA should be as specific as possible in describing the project. The vote should be taken on the maximum permitted use of that project as allowed under the GPA. Wording to encourage the submittal of specific projects along with their required GPA is needed. Otherwise, the GPA is charged with the maximum allowable use under its designation in the General Plan. Approving a GPA for a specific use will lessen the load on the applicant. However, enforcement of these specific uses is needed (See recommendation below) in order to prevent potential evasions of these procedures. Ltr- Speech 1 -23 -02 lof3 1/23/01 4 - Option A - Morning or Evening Rate 5 - Option A+ - Table of Trip Rates We believe these should be furnished for public review before inclusion in the Guidelines as a part of their approval procedure. Floor Area 1- Options A &B- Measurements There are two ways to use Floor Area, so this issue should be divided in two. Option A for computing trips. Option B for the test under Measure S for voting requirements. 2 - Option A - Residential Uses 3 - Option B - Count Parking Structures As a protection against Intensity, as well as to preserve the character of the city, inclusion of the gross floor area of above ground parking structures is an allowable and required application of Measure S. The current zoning law includes parking structures with a deductible) in the floor area ratio calculation in many zones. This is for the need for a vote test under Measure S. Parking structures should not be used when calculating trip generation. Administration 1- Options A &C Look Back Greenlight supports both the July 1999 and December 2000 dates as they are for all intents and purposes both current and there is no meaningful difference in their application. 2 - Option B Trip Decreases Greenlight recommends granting credit for trip or floor area reductions. 3 - Option A General Plan Data 4 - Option C Pending vote In order to prevent piecemealing while preserving fairness to the applicant, a provision is needed to supplement Option A to only exclude GPA's that are waiting for a required vote and were not submitted by the same or associated entities and do not apply to the same or adjacent properties. 5 - Options A &B Applicant Information Knowing their project's status under Measure S is valuable and required information for the applicant both before and after their application is processed. Ur- Speech 1 -23 -02 2of3 1/23/01 P ' . .- Additional Recommendations 1. Shortcutting of Required City Procedures Measure S goes into effect only after the City Council has approved a GPA. All existing city procedures under CEQA, EIR traffic studies, public hearings etc. must be followed prior to the City Council voting upon a GPA. A requirement to follow the above procedures is needed in the Guidelines. 2. Enforcement of allowed uses As is potentially possible on the "500 Superior St. project', the will of the voters may be bypassed by classifying a project at a lower level of traffic generation (i.e. R &D) and then not following that classification. A strong enforcement procedure needs to be defined within these guidelines and implemented by the city staff. Progress on the enforcement procedure needs to be reported via a regular annual public review by the City Council and General Public. 3. Simultaneous Amendments In case two or more amendments affecting the same statistical area are adopted by the same vote of the city Council, a rule is needed to determine which is "prior" to the other. Ltt- Speech 1 -23 -02 3of 3 1(23(01 '-ti FE:CENti'E January 10, 2001 Mayor Gary Adams City of Newport Beach Dear Gary: = NO. 5aS- 7Ea -:59? BY FACSIMILE - 2 PAGES Barry D. Eaton 727 Bellis Street Newport Beach, CA 92660 Phone and fax. 949760 -1691 email: eaton727Qearthiink.net .1a ^. :.7 222: oE:38FM J�� 3 )Mbl F2 na m m z ^ n M r M v I really appreciated your comments at the "Greenlight" Guidelines study session yesterday - particularly as to the future "fringe peak hour" problem that is surely going to confront Newport Beach in the future. I hope that the City Council will authorize another look at the TPO in the not - too - distant future to address that problem, and avoid future interpretations similar to that made on the Conexant AM peak hour traffic. I was going to suggest the possibility of reference to the attached highlighted paragraph from the ITE manual. The bracketing and small underline are mine, but the boldface type is ITE's own emphasis - so they must have felt that this issue is important as well. I hope the Council sees fit to either refer to this paragraph or to adopt your suggestion to use the peak hour of the traffic generator in the "Greeniight" guidelines; and I hope that they will authorize another look at the TPO as well. Thanks again for your comments. Sincerely, ��jj Date `1 `O ; �i� Copies Sent To: Barry D. Eaton Mayor cil Member cc: Councilmembers Staff 13�tager rneyrney°°d O marry esdxates of rfie 2t2ber of employees worimg in in OF= building are derived as a function of the in (in square fovnge) of the owe building and an usurned employment density. TIus approach is not surely to be aocu- rate. In such a use, the pmfar= shoWd be to use the office building sgtace footige as the primary inde- pendmtvariable. RA5�iz Measure Must Be Derived In the ptannia$ stage, same inda, pendent variables : Lay need to be estimated on the basin of ocher vari- abler. For temple, the amount of HDploymear is gelYSRlly esdonted on the basic of groan floor arses (GFk). Themfbm GFA would be ft strongest variable nay have to be redone due to the invalid oocversion. eA- ®Time Period for Analysis Trip Crancratfou is inwrided forum is esthrtating the number of trip ends that may be generated by a specific land use. Selerdon of the time period kc the trip generation study is dietatcd by the purpose of the traffic impact asstonmt for which the estimate in being made. To daermirte the apptopti m traffic impKz and moulting design rcgtcre- meits, the analyst should a rain the weighted assrage oxen or regres- sion cq.=tionii for the difkrcnt days and tious pods to dtanmtine when the site in quemm peaks is traffic gesur3d n. It is also critical to define the relationship betseat that peak generxtSon and the Pealing edarae- terissio of the a *m= strtvt system, ?reference should be given to iode� pendent variables dint are direcdy avaiiable. If an eaticmm is needed, use a diffef=k&pendnntt variable )mown to be valid and att=te and apply a realistic and crethlle factor to generate the desired ind'epen- denr variebla Such ectirmtes should be based co verifiable or valid relationships applicahk to the site being mtuidered. It is always best ro review such prolwbons or convcaions with the reviewer of the eatimuc to ;air early consea- scs. Otherwise, all Subsequent work Tlae rime period drat should be amlyzed is dre time period in tebldt ref slso- gtaeed traffic sad sdjaoeat: tweet traffics at its mnatimasm P For nearly all cases, the ge nera- tica rates or egoatiam for the morning and evening peak hours of the adjacent street Mt= (%gboev arie hour betw= 7:00 ,,Tai and 9:00 A, m. and between 4:00 v..vz. and 6:00 r.�&) would be used to test tae impact on the normal peak hoar traffic Some land uses, however, do not peak m 4 IM ■ Trip Garerosfon Rwvl;wK Chirp p' 2 --a-. i2 21,21 2G:31Fr 941 -'7 (PO -1!x91 the same time is Litz adjacent streets (c,g., thacem Stctnry shift that ends ar 3 n,vt,),'llrereforc, the analyst should vwr combinations of generator volumes and street vokunes at di$erent times to derntntine a sires maximum, and most t-ridcal, impact. Trip emastion data plots, rates, and equations are presorted In Trig Gsenerasku for s Tanga of days of the week (i.e., average weekday. Sammy. S=da9) =d for diffW°ent time periods during those days (i.e, the da.4 a`o'aiag and evening peak hours of the gererator, and of adjo. cent screen trvilic). The rM Ream nC.-U d practice TmewAaav and S, px Soxlin fur Siff Dfuflspeseat provides furehor, gutd=02 or defining the appropri- are time period. Time of Day, Day of Week, and Seasonal Variations Tables 2.1 through 2.4 (reproduced bum Trip Gerrefsbbr4 Sinh Fdiriun) provide rnacdlaraeous inf=nadon m daily; monthly, and ho,uiy varia- tions in chopping meter (Land Use Code 820) trance. It should be noted, however, that the number of studies providing these data are lie ted, and caudm in using these tables s therefore rearmmeaded. Do not case these data l;or peak )tour trip gaacration mcimaresr sr