HomeMy WebLinkAbout16 - Rex Brandt Trust - 2720 & 2730 Bayside DriveMarch 13, 2001
Item No. 16
CITY OF NEWPORT BEACH
OFFICE OF THE CITY ATTORNEY
TO: Mayor & Members of the City Council
FROM: City Attorney
RE: Measure S Guidelines
DATE: March 13, 2001
BACKGROUND
The City Council has held three public meetings to discuss, and receive testimony on,
proposed guidelines to implement Measure S. I have prepared draft guidelines that are
intended to reflect the "straw votes" taken by the City Council on February 13, 2001. This
memo discusses some of the key issues and describes certain provisions that are either
new or do not strictly conform to the straw votes.
DISCUSSION
1. TRIP GENERATION RATE
The Council straw votes expressed a preference for using the average peak hour
rate of the land use rather than the peak hour rate of adjacent street. The
Guidelines are consistent with the straw votes but retain the option of using
adjacent street traffic rates through adoption of the Trip Rate Table if the Traffic
Engineer and the Council determine this will better reflect the traffic impact of an
amendment.
2. DEFINITION OF FLOOR AREA
The Council selected the definition of floor area in the Municipal Code as the basis
for calculating floor area. However, the Council wanted staff to prepare language
that would give Council the option of including parking structures in the definition of
floor area. If the Council wants to include parking structures in the definition of
floor area, the following language should be substituted for existing text in A(5):
"(5) Floor Area. The term "floor area" shall be defined as the total
enclosed area of all floors of a building measured to the outside face of the
structural members in exterior walls, and including halls, stairways, elevator
shafts at each floor level, service and mechanical equipment rooms,
basement or attic areas having a height of more than seven feet and the
total above grade surface area of above grade parking structures."
3. ENTITLEMENT AND ENTITLEMENT TABLE
Staff recommended, and the Council directed, the preparation of an Entitlement
Table that would reflect all of the existing General Plan entitlement. The
Guidelines propose a more limited Entitlement Table — one that would reflect only
amendments approved after the effective date of Measure S. This will eliminate
extensive staff work and we believe the existing General Plan text is, for the time
being, more than adequate for purposes of Measure S analysis until subsequent
amendments are approved.
The Guidelines propose a method of calculating entitlement in some cases that
was not discussed in previous memos. The General Plan frequently designates a
"base" floor area ratio (FAR) of .5 times the buildable area of a parcel or
geographical area, but allows the FAR to vary between .3 (reduced FAR use) and
.75 (maximum FAR use) depending on the traffic generation characteristics of the
land use. Land uses that generate large amounts of traffic are considered
"reduced FAR uses" and entitlement is limited to .3 times the buildable area. In
these cases, the Guidelines propose to calculate entitlement, before and after the
amendment, based on the maximum permitted FAR of the land use(s) proposed in
the amendment.
4. MULTIPLE AMENDMENTS
The City Council may approve more than one amendment at the same meeting
and staff has, based on a suggestion made at the last meeting, proposed a
method of determining the order in which amendment are deemed approved.
RECOMMENDATION
Staff is recommending adoption of the proposed Guidelines as submitted or as
amendment by the City Council.
Burnham
COUNCIL POLICY A -18
On November 7, 2000, the Newport Beach electorate approved Measure S (Exhibit A).
Measure S amended the Newport Beach City Charter by adding Section 423. In general
terms, Section 423 requires voter approval of certain amendments of the Newport Beach
General Plan (General Plan). Measure S "encourages' the City Council to adopt
implementing guidelines that are consistent with its purpose and intent. This Policy
contains the guidelines adopted by the City Council pursuant to Measure S (Guidelines).
These Guidelines are intended to assist the City Council in deciding whether an
amendment requires voter approval pursuant to Section 423. The City Council shall have
the full discretion not to apply all or a portion of these Guidelines to an amendment if the
application would result in an analysis or decision contrary to the express purpose of
Measure S.
A. DEFINITIONS
The definitions and terms in this Section are intended to be consistent with the purpose
and intent of Measure S. Certain definitions and terms are intended to generally conform
to the definitions in, and terminology of, "Trip Generation," a multi - volume publication of
the Institute of Transportation Engineers (ITE Manual). The ITE Manual is the primary
reference used by transportation professionals seeking trip generation information.
Measure S requires use of the ITE Manual as a basis for calculating the peak hour trips
generated by amendments.
(1) Allowed Use(s). The term "allowed use(s)" means any land use
"allowed or permitted by the General Plan" before and /or after an amendment. In
most cases, the General Plan designates entitlement for property or geographical
areas in the City in terms of one of four land use categories (land use category or
categories). The four land use categories are "Residential ", "Commercial ",
"Industrial ", and "Public, Semi - Public and Institutional" and there are certain land
uses authorized within each of the four land use categories. A land use shall be
considered to be "allowed or permitted by the General Plan" if it is one of the land
uses authorized by the applicable land use category unless the City has, through
legally enforceable conditions imposed on the amendment, restricted the land
use(s) that are "allowed or permitted by the General Plan."
(2) Amendment. The term "amendment" means any amendment of the
General Plan approved by the City Council after December 15, 2000, that, when
compared to the General Plan prior to approval, increases the number of peak
hour trips, dwelling units or floor area.
(3) Dwelling Unit. The term "dwelling unit' means "dwelling unit' as defined in
Section 20.03.030 of the Newport Beach Municipal Code (Code).
(4) Entitlement. The term "entitlement' means the maximum amount of floor
area, dwelling units or other measure of density or intensity (such as hotel rooms
or marina slips) authorized by the General Plan on any property and /or in any
geographical area. The entitlement for any property or geographical area shall be
based on the text of the General Plan and the Entitlement Table.
(5) Floor Area. The term "floor area" shall be defined as follows (taken from
Section 20.03.030 of the Code - "Floor area, gross "):
"The total enclosed area of all floors of a building measured to the outside
face of the structural members in exterior walls, and including halls, stairways,
elevator shafts at each floor level, service and mechanical equipment rooms, and
basement or attic areas having a height of more than seven feet."
(6) Non - residential Use. The term "non- residential use" means any land
use, except a residential use, that generates any peak hour trips. The term "non-
residential use" 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. The term "non- residential use" includes a "group
residential use" and "limited care residential use" as defined in the Code.
(7) Peak Hour Trips. The term "peak hour trips" means the number of
vehicle trips equal to the peak hour trip rate for a land use multiplied by the
quantity of the "unit of measurement' for that land use as stated in the ITE Manual.
(8) Peak Hour Trip Rate. The term "peak hour trip rate" means the following:
(a) Prior to City Council approval of a Trip Rate Table as described in
Section B(4), the peak hour trip rate shall be the higher of the
morning or evening weekday average rate of the land use
(generator) as specified in the ITE Manual. In the event a land use is
not specifically referenced in the ITE Manual, the peak hour trip rate
shall be the higher of the morning or evening weekday average rate
of the most comparable land use in the ITE Manual.
(b) After City Council approval of a Trip Rate Table, the peak hour trip
rate of a land use shall be the higher of the morning or evening peak
hour trip rate as specified in the Trip Rate Table.
(c) The Transportation and Development Services Manager (Traffic
Engineer) may adjust the peak hour trip rate determined pursuant to
subsections (a) or (b) by an amount not to exceed five percent (5 %).
(9) Prior Amendment. The term "prior amendment' means an amendment
that:
(a) affects property or a geographical area within the same statistical
area as an amendment that is being evaluated to determine if voter
approval is required pursuant to Measure S;
(b) was approved by the City Council after December 15, 2000;
(c) was approved within ten years prior to the date the City Council
approved the amendment; and
(d) was determined by the City Council, or by a final judgment of a court
of competent jurisdiction, not to require voter approval pursuant to
Measure S and this policy.
(10) Residential Use. The term "residential use" means the following residential
uses as defined in the Code: (a) single - family residential use; (b) two- family
residential use; and (c) multifamily residential use. The term residential use does
not include a group residential use or a limited residential care use as those terms
are defined in the Code.
(11) Statistical Area. The term "statistical area" shall mean one of the
Statistical Areas identified (on page 89) in the Land Use Element of the General
Plan approved by the City Council on October 24, 1988 and any new statistical
area established for property annexed to the City subsequent to that date.
B. METHODOLOGY
This Section describes the methodology and assumptions to be used for purposes of
calculating the peak hour trips, floor area and dwelling units of the allowed uses before
and after an amendment. This Section also describes the methodology that will be used
in developing the Trip Rate Table (Exhibit B when approved by the City Council) and the
Entitlement Table (Exhibit C when and if approved by the City Council).
(1) Peak Hour Trips. The peak hour trips of an amendment and the General
Plan prior to the amendment shall be calculated by multiplying the full entitlement of the
allowed use(s) by the peak hour trip rate of the allowed use with the highest peak hour
trip rate. For example, an amendment that authorized 25,000 square feet of medical
office (specifically designated through legally enforceable conditions), 10,000 square feet
of commercial use; and a marina with 100 boat slips would generate 182 peak hour trips
based on the following:
(a) The peak hour trip rate of medical office (4.6 trips /1000 sq. ft.)
multiplied by 25 fora total of 115 peak hour trips; plus
(b) The peak hour trip rate of the allowed use in the commercial land
use category with the highest peak hour rate (assuming medical
office — 4.6 trips /1000 sq. ft.) multiplied by 10 for a total of 46 trips;
plus
(c) The peak hour trip rate of a marina (.21 trips /slip) for a total of 21
trips.
The calculation of any increase in peak hour trips resulting from an amendment shall be
based on the total peak hour trips for all of the entitlement for the entire property or
geographical area that is the subject of the amendment.
(2) Floor Area. The floor area authorized in the General Plan for property or a
geographical area before and after the amendment shall be determined on the basis of
the maximum amount of floor area authorized by the General Plan for all non - residential
uses before and after the amendment. In the event the General Plan non - residential
entitlement for property or a geographical area is designated in terms other than floor
area (such as hotel rooms or boat slips) the determination as to whether the amendment
requires voter approval shall be based solely on any increase in peak hour trips. In those
cases where the General Plan authorizes varying amounts of floor area depending on the
type of land use (reduced FAR, base FAR and maximum FAR), the entitlement (before
and after the amendment) shall be based on the maximum amount of floor area allowed
for the allowed use(s) approved by the amendment.
(3) Dwelling Units. The dwelling units authorized in the General Plan for
property or a geographical area before and after the amendment shall be determined on
the basis of the maximum number of dwelling units specified for the property or
geographical area before and after the amendment.
(4) Trip Rate Table. The peak hour trip rate for an amendment shall be
determined in accordance with the definition in Section A(8) until the City Council has
adopted a Trip Rate Table. The Trip Rate Table is intended to be a list of the most
common land uses and the peak hour trip rates for each land use based on information in
the ITE Manual. The peak hour trip rates in the Trip Rate Table are intended to represent
the best professional judgment of the Transportation and Development Services Manager
(Traffic Engineer) as to the most appropriate peak hour trip rate (based on information in
the ITE Manual) for the most common land use types. In preparing the Trip Rate Table,
the Traffic Engineer shall use the peak hour rate of the generator unless the peak hour of
the adjacent street traffic more accurately reflects the traffic impact of a particular land
use. The Traffic Engineer shall use the "average' trip rate from the ITE Manual (the
mean of all data points) unless the "best fit curve' peak hour rate is supported by
adequate studies and would more accurately reflect the traffic impacts of the particular
land use at varying densities/intensities. The Trip Rate Table shall include the morning
and evening peak hour trip rates. The Trip Rate Table shall indicate if the peak hour rate
is based on the generator (GR) or adjacent street traffic (AST) and whether the rate is
based on the average rate (AR) or the "best fit curve' (BFC).
(5) Entitlement Table. The entitlement for any property or geographical area
prior to an amendment shall be based on the text of the then current General Plan and
the provisions of an Entitlement Table. The Entitlement Table shall describe, by statistical
area, the peak hour trips, dwelling unit and floor area increases of each amendment
approved by the City Council subsequent to the effective date of Measure S (December
15, 2000).
(6) Multiple Amendments. The City Council may have occasion to approve
more than one amendment affecting the same statistical area at the same meeting. In
such event, the amendments shall be deemed approved in the following order:
(a) The amendment(s) with the earliest date(s) of initiation (for example
GPA 2001 -1A) shall be deemed approved before an amendment with later date of
initiation (for example 2001 -26).
(b) In the event that more than one amendment was initiated at the
same time, the amendments shall be deemed approved in alphabetical order (for
example GPA 2001 -1A would be deemed approved before GPA 2001 -1 B).
C.
1. Preliminary Analysis. The Planning Director shall provide an applicant
for an amendment with a copy of these Guidelines at the time the application is filed. The
Planning Director shall, within thirty (30) days after the application is filed, provide the
applicant with a preliminary analysis as to whether, and why, the amendment may require
voter approval pursuant to Measure S. The preliminary analysis is intended solely to
provide an applicant with information about the possible impact of Measure S. The
preliminary analysis does not constitute any binding commitment or formal opinion of the
Planning Director or the City with respect to the impact of Measure S on the amendment
if approved by the City Council.
2. Post - approval Procedure. After an amendment is approved, the
following procedure shall be used to determine if the amendment requires voter approval
pursuant to Section 423.
(a) Planning Director Report. The Planning Director shall, within
five (5) working days after City Council approval of the amendment, prepare a
report that provides, at a minimum, the following information with respect to the
amendment:
(i) If the amendment authorizes, or relates to, a residential use,
the maximum number of dwelling units authorized by the General Plan for
the entire property or geographical area before and after City Council
approval of the amendment.
(ii) If the amendment authorizes, or relates to, a non - residential
use, the maximum amount of floor area authorized by the General Plan for
the entire property or geographical area before and after City Council
approval of the amendment. In the case of an amendment that involves
entitlement with variable floor area limits depending on the type of land use,
the entitlement before and after the amendment shall be based on the land
use(s) approved by the amendment.
(iii) The number of peak hour trips for all the entitlement
authorized by the General Plan for the entire property or geographical area
before and after City Council approval of the amendment.
(iv) A table that identifies the increases in floor area (for non-
residential uses), dwelling units (for residential uses) and peak hour trips (all
land uses) resulting from, and the dates of, prior amendments. The table
shall also depict eighty percent (80 %) of the increases in floor area, dwelling
units and peak hour trips for all prior amendments.
(v) A table that adds eighty percent (80 %) of the increase, if any,
in peak hour trips (all land uses), floor area (non - residential uses) or
dwelling units (residential uses) from all prior amendments to the increases
in peak hour trips, floor area and /or dwelling units resulting from the
amendment.
The Planning Director shall submit the report to the City Council no later than the
second regular meeting of the City Council after City Council approval of the
amendment.
(b) City Council Review. 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 423. The City Council
shall submit the amendment to the voters if:
(1) the amendment relates to a non - residential use and authorizes
an increase in floor area for the entire property or geographical area that is
the subject of the amendment that exceeds forty thousand (40,000) square
feet when compared to the General Plan before approval of the
amendment; or
(ii) the amendment relates to a residential use and authorizes an
increase in the number of dwelling units for the entire property or
geographical area that is the subject of the amendment that exceeds one
hundred (100) dwelling units when compared to the General Plan before
approval of the amendment; or
(iii) the amendment modifies the type or amount of residential or
non - residential use specified for the property that is the subject of the
amendment such that the allowed use(s) after the amendment generate(s)
at least one hundred and one (101) more peak hours trips than the allowed
use(s) before the amendment; or
(iv) the increase in peak hour trips, dwelling units or floor area
resulting from the amendment when added to eighty percent (80 %) of the
increases in peak hour trips, dwelling units or floor area resulting from prior
amendments exceeds the voter approval thresholds in subsections (a), (b)
or (c) above.
(c) Calling an Election. In the event the City Council determines
that the amendment requires voter approval, the City Council shall, no less than
sixty (60) days after making the determination, adopt a resolution calling an
election on the amendment. The City Council shall schedule the election on the
amendment at the next regular municipal election (as specified by the City Charter)
or at a special election if the applicant for the amendment has entered into a
written agreement with the City to share the costs of the special election.
.
- February 13, 2001
13, I� O' Study Session Item #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
Straw Vote Topics
DATE: February 13, 2001
The City Council has held two public meetings to discuss, and receive testimony on,
proposed guidelines to implement Measure S. This memo identifies the topics that the
Council has identified as matters to "straw vote ", and explains the reasoning for our
recommendations to adopt "OPTION A" in each case. We believe these
recommendations are consistent with the Council's direction that the guidelines be
consistent with Measure S and as uncomplicated as possible.
1. TRIP GENERATION RATE
OPTION A. USE THE AVERAGE PEAK HOUR RATE OF THE LAND USE
OPTION B. USE THE AVERAGE PEAK HOUR RATE OF ADJACENT STREET
Staff is recommending OPTION A because it is more consistent with Measure S
which defines a "major amendment" as "one that significantly increases the
maximum amount of traffic that allowed uses could generate."
2. TRIP RATES AND TABLES
OPTION A. COUNCIL APPROVE TRIP RATE TABLE FOR EACH LAND USE
IN ITE MANUAL AFTER PUBLIC HEARING
OPTION B. CITY COUNCIL DETERMINES TRIP RATES BASED ON
PLANNING DIRECTOR REPORT AFTER APPROVAL
Staff is recommending OPTION A with Staff preparing a trip rate table for Council
review and approval at a public hearing. The trip rate table would determine
whether to use the average trip rate or "best fit curve" as well as the most
appropriate "independent variable" (floor area, employees etc.) for each land use
in the ITE Manual. The recommendations would be submitted to the City Council
at a public hearing and would become part of the guidelines after approval.
3. LAND USE FOR TRIP RATE CALCULATION
OPTION A. HIGHEST RATE FOR ANY USE PERMITTED BY THE
AMENDMENT CALCULATED ON BASIS OF ALL ENTITLEMENT
OPTION B. HIGHEST RATE FOR ANY PERMITTED USE BASED ON THE
GENERAL LAND USE ELEMENT DESIGNATIONS
Staff is recommending OPTION A because peak hour trips will be calculated on
the basis of highest trip rate of any land use to the maximum extent of the
entitlement. The Guidelines will require use of the highest rate of any use that the
City would not have the power to prevent or enjoin. Staff will prepare a draft
Council Policy — separate from the Measure S guidelines — that addresses the
need for specificity in applications for, and decisions to approve, a General Plan
amendment.
4. MORNING OR EVENING RATES
OPTION A. THE HIGHER OF THE MORNING OR EVENING WEEKDAY RATE
OPTION B. ADD MORNING AND EVENING WEEKDAY RATE
OPTION C. USE HIGHER OF MORNING OR EVENING ON WEEKDAY OR
WEEKEND
Staff is recommending OPTION A because Measure S does not provide any
guidance and OPTION A will fully reflect the impact of an amendment on the
circulation system.
5. DEFINITION OF FLOOR AREA
OPTION A. USE ITE DEFINITIONS OF FLOOR AREA WHEN APPROPRIATE
OR CODE DEFINITION OF GROSS FLOOR AREA IF NOT.
OPTION B. USE CODE DEFINITION OF GROSS FLOOR AREA
Staff is recommending OPTION A because Measure S requires use of the ITE
Manual to determine trip rates which are expressed in terms of four different
definitions of floor area depending on use. The use of ITE Manual definitions of
"floor area" will ensure the most accurate calculation of peak hour trips. OPTION
B would be easier to administer since staff is familiar with terms in the Code. The
wording of Measure S does not support one definition of floor area for determining
peak hour trips and another for calculating "intensity."
6. RESIDENTIAL USES
OPTION A. FLOOR AREA NOT CONSIDERED FOR RESIDENTIAL USES
OPTION B. FLOOR AREA CONSIDERED FOR RESIDENTIAL USES.
Staff is recommending OPTION A because there is no correlation between the
"floor area" of a residential use and peak hour trips generated by that use. The
obvious intent of Measure S is to use "dwelling units" or "peak hour trips" as the
criteria to determine if voter approval is required of an amendment.
7. PARKING STRUCTURES
OPTION A. DO NOT COUNT PARKING STRUCTURES AS FLOOR AREA
OPTION B. COUNT PARKING STRUCTURES AS FLOOR AREA
Staff is recommending OPTION A for many reasons. First, 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." Second, Measure
S does not express the intent to regulate building bulk and any attempt to do so
may give rise to an argument that it violates the "single subject rule." Third, the
definitions of floor area in the ITE Manual and the Code do not include parking
structures. Finally, planners and architects do not use "floor area" as a way of
describing the size of parking structures.
S. "LOOK BACK" PROVISION
OPTION A. STARTS ON THE EFFECTIVE DATE (12115100)
OPTION B. STARTS WHEN NOTICE OF INTENT PUBLISHED (7/30/99)
OPTION C. GO BACK TEN YEARS PRIOR TO DATE OF APPROVAL
Staff is recommending OPTION A. The obvious intent of the "look back" provision
is to prevent "piecemeal" amendments designed to avoid the voter approval
thresholds in Measure S — requirements that operate prospectively. The wording
of Measure S does not satisfy the test for retroactive application — that the
language evidence a "clear intent" to have retroactive application. The only
"retroactive" language in Measure S is a provision that seeks to apply — to the
maximum extent permitted by law - the voter approval thresholds to any
amendment approved after July 30, 1999.
9. CREDIT FOR TRIP REDUCTIONS
OPTION A. NO CREDIT FOR TRIP REDUCTIONS
OPTION S. CREDIT FOR TRIP REDUCTIONS
Staff is recommending OPTION A because the voter approval "thresholds" in
Measure S are determined by the trips, density and /or intensity of the amendment
"plus... eighty percent of the Increases resulting from other amendments."
10. GENERAL PLAN DATA
OPTION A. INCORPORATE A GENERAL PLAN ENTITLEMENT TABLE
OPTION B. COMPARE TO THEN CURRENT GENERAL PLAN
Staff is recommending OPTION A because it would be difficult to determine if voter
approval was required without information about the nature and amount of
entitlement prior to approval of the amendment.
11. AMENDMENTS PENDING A VOTE
OPTION A. DON'T COUNT AMENDMENTS PENDING VOTER APPROVAL
OPTION B. COUNT AMENDMENTS PENDING VOTER APPROVAL
Staff is recommending OPTION A - to disregard amendments pending voter
approval for purposes of the "look back" provisions. Voter approval of a pending
amendment would mean it is not considered a "prior amendment" and voter
rejection makes the amendment moot.
12. APPLICANT INFORMATION
OPTION A. PROVIDE APPLICANT WITH GUIDELINES AND OPINION
OPTION B. PROVIDE APPLICANT WITH GUIDELINES
Staff is recommending OPTION A so longs as the "opinion" is accompanied by a
disclaimer that minimizes the potential for litigation based on the applicant's
reliance on staffs preliminary assessment.
The City Council always has the right to amend or add to the guidelines as well as the
right to depart from the guidelines if their application in any specific case would be
contrary to the intent of Measure S.
Burnham
•
•
a"��,•a +� ,�a =?,1 January 23, 2001
y a .I Jy C 1 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
BAC KGROU NDIRECOMMENDATION
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. Trio 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. Morning 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 0
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(0).
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)
5. 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
f,�b'
Attachment A
Measure S Guidelines Matrix
1. Peak Hour Trigs
Issue Option A Option B Other
Trip Rate of Land Use or
Average Peak Hour
I Average Rate of
Starts 7130199
Adjacent Street Traffic
Rate of Land Use
I 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
I Weekday Rate
Table of Trip Rates
Guidelines Include
City Council
Applicant
Trip Rate Table for
I
Decides Trip Rate
Information
Most Land Uses
After Approval
2. Floor Area
Issue Option A Qption B
Other
Measurement
Use one of 4 ITE
NBMC Definition
Starts 7130199
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 Qption A Option B Other
Look Back
Starts 12115100
Go Back 10 Years
Starts 7130199
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
(•
a
0 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 12reven 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
maior changes do not escaae scrutinv 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
l 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
P
R
COUNCIL SEND�Tanuary 9, 2001
1.
3 5-5-4 I z�oI tudy Session Item No. SS3
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" specked 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.
0 t `I (-/�-
!Robert Bum 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.
0
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 modifies 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.
0
0
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.
11
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 'bested 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.
•
•
E
an Beek, 2007 Highland
RECE11>6 rt Beach CA 92660 -4407
'01 FM -7 P4 A3
Honorable Mayor and Members of the City Council:
"RECEIVED AFTERAGENOA
PRINTED:" S S3 �J � 0-0 1
February 7, 2001
Charter Seq)P -I(epOPAEJUOOSLeLlAwo questions which it does not answer:
1) Is credAJTtc@F1NE(?DRt#EXC1t negative increases? Section 423 does
not say Yes and does not say No; it is silent.
2) Are amendments adopted before Section 423 to be included in the
accumulation? Section 423 does not say Yes and does not say No; it
is silent.
Since Section 423 is silent, the answers must be those which make
most sense with the other portions of 423 - - -- Section 423, like any
legal document, is to be read as a consistent whole.
On credit for negatives, the rest of the document is of no help. The
answer can only be an attempt to be fair and reasonable.
On pre -423 amendments, it is clear that they are not to be included.
To include them would make Section 423 inconsistent in three ways:
1) Years different. The first ten years of Section 423 would become
inconsistent with normal years (after the ten year phase -in period) .
During the first ten years the accumulation of prior amendments would
be loaded up with major amendments from before adoption of Section
•423. During normal years, the accumulation is not loaded up with
major amendments, because major amendments have gone to the voters
and "other amendments does not include those approved by the voters."
2) Minor votes. Inclusion would force minor amendments to go to the
voters, inconsistent with the intent of Section 423 that minor amend-
ments shall not go to the voters, as shown by two provisions of 423:
An amendment which comes near or reaches the limit, but does not
exceed it and so does not go to the voters, is kept from loading
up the accumulation by being counted at only 80% of its full
value. This leaves a margin of at least 20% of the limit for the
use of any subsequent minor amendment.
Major amendments are kept from loading up the accumulation because
they go to the voters and are specifically excluded.
3) Inappropriate use. The accumulation of prior amendments is the
device used to meet the second stated purpose of Section 423: To
make sure that major changes do not escape scrutiny by being presen-
ted piecemeal as a succession of small changes. It is inconsistent
with this purpose to apply the device to amendments that were written
and approved before there was any Section 423 scrutiny to escape.
Therefore Section 423 is to be regarded as reading
"Other amendments" does not include those approved by the voters,
nor those approved before the effective date of this section.
. This letter is my own. I do not speak for any other person or group.
Respectfully, aWk "
Allan Beek "RECEIVED AFTER AGENDA
RECEIVED 2007 Highland PRINTED:" Jr%3 VO-AW I
Newport Beach CA 92660 •
401 FM —9 A9 51 February 9, 2001
Honora�� %%ItQ"Epthe City Council:
CITY OF NEWPORT BEACH
There are still some of kinks to be ironed out of the straw votes and draft Guidelines for Measure S.
This would be done most efficiently at informal working group sessions. The City Attorney has been
too busy to arrange any such sessions, and I certainly would NOT suggest that he neglect JWA to
give his attention to Measure S. But the result is that you are faced with documents which are
confusing, miss the point, and violate Measure S. In five weeks, we have made no progress.
I hope that some informal working sessions can be arranged before you begin serious work on Policy
A -18. As the City Attorney is overloaded, maybe a Councilman with legal expertise could chair
these sessions. Attendance could be open to everyone - -- there would probably be less than half a
dozen takers.
I am reluctant to distract you with what is basically preparatory work, so please do not waste your
time reading the rest of this letter unless you are forced to take up the straw votes and draft as
they stand, with no working sessions ahead of time to iron out the kinks.
The kinks I refer to are discussed below. I believe that none are controversial (except perhaps
between the City Attorney and me) and none rise to the level of being worthy of public debate.
•
STRAW VOTES
3. LAND USE FOR TRIP RATE CALCULATION The two options given sound so much alike
that it is not clear what the difference is or what either one means. Option A refers to "entitlement;"
entitlement depends on the zoning, and some land use designations allow for several different zones,
so the entitlement could be changed with no change in the general plan. Policy A -18 should be
written to require that the calculated trip generation shall be the maximum that could be achieved on
the land without any further general plan amendments. Neither Option A nor B nor the draft policy
requires this. All three are so mushy that there is no point in straw voting between A and B. There
does not seem to be any question or controversy to resolve, so there is no need to vote.
4. MORNING OR EVENING RATES Option A is obviously correct, so there is no need to vote.
5. DEFINITION OF FLOOR AREA This is two separate questions, one for intensity and one for
trip generation. The staff report is mistaken is saying that "Measure S does not support one
definition of floor area for determining peak hour trips and another for calculating intensity."
Measure S mentions floor area ONLY in connection with intensity. For trip generation, it refers to
the ITE Manual, which uses hotel rooms, net floor area, theater seats, and a variety of other
independent variables. These stand on their own, and are quite independent of the intensity measure
which is specified as "gross square feet" by the last sentence of the first paragraph under
"Commercial" in the "Major Land Use Plan Designations" part of the Land Use Element.
The ITE Manual fontrip generation, and gross square feet for intensity, are both so obvious that •
there is no controversy to resolve, so there is no need to vote.
6. RESIDENTIAL USES Option A is obviously correct, so there is no need to vote.
•9. CREDIT FOR TRIP REDUCTIONS If straw vote 9 is B, then credit for negatives should apply
not only to peak hour trips, but also to dwelling units and floor area.
10. GENERAL PLAN DATA It is not clear what staff intends. Option A seems laudable, but
appears to require a heroic amount of work from the Planning staff--- to make the dwelling unit,
floor area, and maximum possible trips calculations for every parcel throughout the city. It would be
more reasonable to make the calculations case by case as general plan amendments are proposed. (A
proposed amendment may deal with an arbitrary, unpredictable area.)
Maybe I just don't understand, and need to have item 10 explained to me. As I understand it, it
would have no effect on whether or not amendments go to the voters, it would simply burden the
staff. Option A is incredible. There is no controversy to resolve, so there is no need to vote.
11. AMENDMENTS PENDING A VOTE Option A is obviously correct, so there is no need to
vote.
12. APPLICANT INFORMATION There must be some misunderstanding; there is no choice here.
As I set forth in my January 22 letter to you, the Planning Commission and City Council should have
full knowledge of what they are voting on. The applicant can then obtain the information from the
staff report. (A working session is badly needed to clear up this misunderstanding.)
• DRAFT POLICY A -18
From the January 9 staff report. (It has not been updated.)
Definitions. The trip rate table of straw vote 2 A should be referenced in the introduction.
Definition 2. "floor area" The draft incorporates the confusion of straw vote 5 and the mistaken
idea that intensity and trip generation must use the same definition of "floor area." Here is a
suggestion for more satisfactory wording:
In measuring intensity for comparison with the 40, 000 square foot threshold, the term 'floor area"
shall mean gross square feet as used in the Land Use Element of the general plan. In computing
maximum amount of traffic that allowed uses could generate for comparison with the 100 peak hour
trips threshold, the term 'floor area, "when used by the ITE Manual, shall be as defined in the
Manual. If the ITE Manual uses 'floor area" without specifying which definition it means, then it
shall mean gross square feet as above.
Definition 6. "prior amendment" As noted Jan. 22, this needs to be clearer. Here is a
suggestion:
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) Is or was approved by the City council before or at the same time as the amendment under
consideration, and if at the same time, has an earlier GPA number.
(c) Is or was approved by the City Council less than ten years before the amendment under
• consideration.
(d) Neither is nor was placed on the ballot for a vote of the people.
(e) Was approved by the City Council after December 15, 2000. [If straw vote 8 is A.]
Administration This section is infected by the same misunderstanding as "applicant information,"
noted above. It also neglects to use the accumulation of 80% of prior amendments calculated in •
I (e). Much of it should be rewritten. Here is a suggestion (bold indicates proposed new words):
1. The staff report accompanying any proposal presented to the Planning Commission for a
general plan amendment shall show:
(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,
both before and after approval of the proposed 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,
both before and after approval of the proposed amendment.
(c) The maximum number of "peak hour trips" generated by any use permitted by the general
plan for all of the property that is the subject of the amendment, both before and after approval of
the proposed amendment. ne number of 'peak hour trips" shall be calculated in accordance with
this Policy and the ITEManual. If the ITE manual does not provide peak hour trip generation
information specific to one or more of the land uses) authorized by the general plan, the Planning
Director shall, after consulting with the Director of Transportation and Development Services,
determine the ITEManual land uses) most similar to the land uses) authorized by the general
plan. The number of peak hour trips generated by any land use shall be determined on the basis
of, but shall not be less than ninety-five percent of the trips generated by the most similar land use
in the ITEManual.
(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 of the increase, [ "if any" if straw vote 9 is A; "positive or
negative" if straw vote 9 is B], in floor area (non - residential uses), dwelling units (residential uses)
and peak hour trips (all land uses) resulting from all prior amendments.
2. The City Council shall submit the amendment to the voters if.•
(a) The amendment relates to a non - residential use, and the floor area authorized by the
amendment, plus the 80% accumulation from 1(e), is more than 40,000 square feet greater than
the floor area authorized by the general plan without the amendment; or
(b) The amendment relates to a residential use, and the dwelling units authorized by the
amendment, plus the 80% accumulation from 1(e), is more than 100 dwelling units greater than
the dwelling units authorized by the general plan without the amendment; or
(c) The amendment modifies permitted land uses so that the maximum number of peak hour trips
generated by any use permitted after the amendment, plus the 80% accumulation from 1(e), is
more than 100 trips greater than the maximum number of peak hour trips generated by any use
permitted by the general plan without the amendment.
3. In the event that the amendment requires voter approval, the City Council shall, at the same
meeting that gives final approval to the amendment, 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.
Please note that this letter is my own. I do not speak for any other person or group. •
Sincerely, 0&
A
I/
Tt
Subject: Summary of Greenlight Proponents Comments on Measure S Guidelines
Date: Tue, 13 Mar 2001 14:40:44 +0000
From: Philip Arst <pmarst @home.com
To:
Norma Glover < nglover @ city.newport- beach.ca.us >,
John Heffernan <jhff @aol.com >,
Tod Ridgeway <tridgeway @city.newport- beach.ca.us >,
Gary Adams <gary.adams@parsons.com >,
Gary Proctor < gproctor @juveniledefenders.com >,
Steve Bromberg <dandee @earthlink.com >,
"O'Neil, Dennis" <doneil @hewittmcguire.com>
CC: "Hyans, Tom" <tomhyans @pacbell.net>, "Hart, Evelyn" <ohartline @aol.com>
We are very appreciative of the good work that you have done in bringing
the Measure S Guidelines to their current state. This is a short summary
of the points we will make tonight with a more complete descriptive
letter to follow.
We have the following concerns:
1. - The clause in the preamble that provides discretion to the City Council regarding the
applicability of the Guidelines as written is acceptable in principle but should require six
affirmative votes to be consistent with the provisions of Measure S.
2. (C 2.) - Post Approval Procedures - We request, per the suggestion of Council members
during the study sessions, that a Policy be adopted to require full processing of GPAs prior to
submitting them for Council approval.
3 (C 2.) - Post - Approval Procedures - We request that the staff reports
to the Planning Commission and City Council contain an analysis of the
status of the application under City charter section 423. The Council &
Planning Commission need this information to thoroughly review a project
and it gives the applicant discretion to reduce his project if that
would avoid a vote.
4. (B 1 -3) - Use of worst -case land use designations. This usage is for
purposes of determining trigger levels for votes and could unduly
penalize small projects that will not be built to the worst -case level.
Where the City can enforce restrictions on a property, the actual trip
rates generated should be used, as that is what the EIR and traffic
studies will analyze.
5. General - The City Council has discretion under Measure S to both
formulate the Guidelines and judging the acceptability of GPAs. The
Methodology proposed for Multiple Amendments under B. METHODOLOGY (6)
addresses the problem of multiple amendments. Measure S leaves to the
discretion of the City Council the judgment of the validity of GPAs that
would use up the remaining entitlement of a statistical area for an
undefined and possibly long term project, thereby causing unnecessary
votes on subsequent small projects
Greenlight
P.O. Box 888
Balboa, CA 92661
Mayor Garold Adams and Members of the Newport Beach City Council March 13, 2001
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
Dear Mayor Adams and Members of the City Council:
We are appreciative of the thoughtful consideration the City Council and Staff have evidenced in
developing the Guidelines that are under review today.
We believe that good progress has been made on these Guidelines. However, some issues remain:
A -18 PREAMBLE
We strongly recommend adding the phrase "upon a vote of not less than six affirmative votes,"
after the phrase "The City Council shall" in the second sentence of the second paragraph of the
preamble to Council Policy A -18. It would then read:
"The City Council shall upon a vote of not less than six affirmative votes have the full discretion not
to apply all or a portion of these Guidelines to an amendment if the application would result in an
analysis or decision contrary to the express purpose of Measure S."
The power to disregard the Guidelines is effectively the power to amend, and Measure S requires 6
affirmative votes to amend We agree that circumstances could arise when this discretion is needed
and that it can be both provided and be consistent with Measure S if it requires six affirmative votes.
A -18: C. PROCEDURES
2. Post - approval Procedure —We have previously suggested that, GPA's contain a full project
definition and be subject to CEQA, EIR, Traffic and other staff analyses as appropriate to the
specific project prior to City Council approval
This will actually help the applicant as the project would be more likely to be passed by the voters if
they knew that environmental and traffic impacts had been fully mitigated.
We respond to City Council's feedback that this activity is governed by City Policies and not the
Guidelines with a request that this Policy be developed and referenced within the Guidelines.
2. Post - approval Procedure, (a) Planning Director Report - We believe that the proposed procedure
places both the City and Applicant at a disadvantage by not knowing the final need for voter
approval at the next General Election. We recommend that the Planning Director Report be
prepared before the Planning Commission and City Council votes as a part of the staff report on the
proposed amendment.
In theory, the City Council must be guided by the public health, safety and welfare when making
land use decisions, and the interjection of whether a public vote would be required could open a
route for a legal attack that might not otherwise exist.
However, City Councils make decisions all the time that may really be based on other
considerations, but are legally defensible because staff has drafted the appropriate resolutions and
findings to support the decision and there is substantial evidence to support the findings.
The reality, however, is that the issue will most likely come up in any event during the hearing on
the merits of the general plan amendment as it is the law of the City. If staff hasn't prepared the
.report ahead of time, there may be a lot of speculation but not much help in the way of fact.
GENERAL
A -18 B. METHODOLOGY
(1 -3)1.) As written, the Guidelines can cause some undue votes on some projects, as they require
utilizing the worst case of the permitted land use under the General Plan even if not built to that
level. On a small office- building project, or small commercial project, this can cause votes even
though the actual use will be below the worst -case level assigned. (Note that the Guidelines are for
determination of a voting trigger only and that under the Traffic Phasing Ordinance, the project
would only be required to make traffic mitigation payments for its actual approved use.)
Additionally, as written, the procedures being developed are subject to abuse if entities file for
amendments that would use up the remaining entitlements in a statistical area while providing
inadequate definition of the specific building plan and uncertain schedules. Measure S specifically
assigned a reasonable level of discretion to City Councils by suggesting that they develop the
Guidelines themselves. The same reasonable level of discretion was assumed for the review of
GPA's by present and future City Councils. They are called upon to act to reject abuses of the
guidelines in order to serve the electorate by eliminating the need for ballot measure votes because
of undue and premature hogging of entitlements.
Our letter to the City Council dated January 23, 2001, recommended providing a specific project
description with each GPA to reduce this problem (provided adequate restrictions can be imposed.)
Experience has been that most applicants do this anyway, and most agencies prefer this approach,
so that the applicant can pitch his project as being less than "worse case" and the city knows up
front what's actually going to be built.
Sincerely,
For the Greenlight Steering Committee
.N , .q f
Eve yn Hart Tom Hyans
A . ,1 �U��