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HomeMy WebLinkAboutSS3 - Measure S Guidelines• CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Study Session Agenda Item No. 3 February 24, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Robert Burnham, City Attorney 644 -3131, rbumham (cilcitv.newoort - beach.ca.us SUBJECT: Measure S Guidelines ISSUE: Should staff prepare amendments to the Measure S Guidelines for consideration by the City Council. RECOMMENDATION: If desired, provide direction to staff regarding those amendments to the Measure S Guidelines that the City Council would like to consider. INTRODUCTION: The City Council adopted the Measure S Guidelines (Guidelines) in March 2001 without the benefit of the knowledge that comes from applying any set of • rules or regulations to actual facts. Staff believes that the Guidelines fully comply with Measure S and disagree with those who contend that the Guidelines are inconsistent with Measure S or contain any "loopholes." However, staff has had an opportunity, during the past three years, to consider how the Guidelines function when applied to proposed amendments and we believe that the City Council may want to consider amending certain provisions. DISCUSSION: • Measure S Summary Measure S added Section 423 (Section 423) to the City Charter. According to Section 423, certain General Plan amendments (Amendments) are not effective unless approved by the voters. Voter approval is required for Amendments that "significantly" increase the "maximum amount of traffic that allowed uses could generate or ... allowed density or intensity." The Measure S thresholds for voter approval are 100 peak hour trips, 100 dwelling units and 40,000 square feet "of floor area ". Measure S "encouraged" the City Council to adopt guidelines to implement the Section 423. • Measure S Misconceptions Measure S did not, as some have suggested, modify the manner in which the City has • historically processed Amendments except to require voter approval of those that exceed the thresholds in Section 423. Measure S does address the timing of an election and the manner in which the ballot measure is drafted but it does not require • the City to prepare more information about an Amendment than was the case before its adoption (the City may be required to conduct some minor additional analysis for small Amendments if the "look back" provisions could come into play). Finally, while Measure S does require voter approval of Amendments that exceed the "intensity" and "density" thresholds, the express purpose of Measure S was to "prevent Newport Beach from becoming a traffic - congested city." • Possible Guideline Modifications Staff has identified the following topics or provisions as possible candidates for amendment or modification: o "Deviation from Strict Application" The Guidelines currently allow the City Council to deviate from a strict application of the Guidelines upon a determination (approved by six affirmative votes) that a strict application would be contrary to the express purpose of Measure S. This language is unnecessary because the City Council can amend the Guidelines (by six affirmative votes) if necessary to avoid a decision that would be inconsistent with Measure S. o . "Allowed Uses" The definition contains language that is accurate but unnecessary because it simply reflects the manner in which land is generally entitled under the current General Plan. • o "Approval" For the purposes of Section 423, City Council "approval" of an Amendment is relevant only to the date of the election and its submittal to the voters as a "separate and distinct" ballot measure. City Council "approval" of an Amendment does nothing more than give the voters the opportunity to approve or disapprove it. Staff believes the Guidelines could be modified to define the term "approval" to include a decision to approve an Amendment for purposes of submitting it to the voters and /or a decision to simply place the Amendment on the ballot as was done in the case of the agreement with Sutherland Talla Hospitality relative to the Marinapark Resort project. o "Non - Residential Use Category" This definition could be shortened and modified to delete the exclusion for group residential use and limited care residential use. o "Floor Area Calculation" The City has, since the inception of the General Plan, entitled large hotels in terms of rooms and large theaters in terms of seats. Staff believes this practice derives from the fact that "rooms" or "occupied rooms" are the primarily "units of measurement" utilized in the ITE Manual for purposes of the calculating traffic generated by hotels and seats are utilized for calculating traffic generated by theaters. The Guidelines currently provide that the determination as to whether a hotel or theater Amendment • requires voter approval is based solely on the "differential in Peak Hour Trips." In At3 • this respect the Guidelines are consistent with the express purpose of Measure S and nothing in Measure S requires the City to alter its long- standing practice of entitling hotels and theaters in a manner that most closely reflects ,their trip generating characteristics. However, the failure to specify hotel and theatre entitlement in terms of rooms or seats and floor area does mean that certain Amendments — such as the Marinapark Resort — that exceed the "intensity" threshold but generate very little peak hour traffic would not be require voter approval pursuant to Section 423. Staff believes that minor amendments to the Guidelines that require Amendments for hotels and theaters to be stated in terms of rooms or seats and floor area would focus the voters' attention on the merits or demerits of the proposed Amendment rather than the rationale for calling the election. o `•`Procedures" The procedures in the Guidelines are so detailed that one might suspect the City Attorney was being paid by the word. Staff has found that applicants for even very small Amendments are fully aware of Section 423 and that the "initial report" is unnecessary. The deferral of the determination as to whether an Amendment would require voter approval was the product of legal concerns that, on further review, are not substantive. Staff believes the procedures can be shortened and streamlined. o "Transfers of Entitlement" The Guidelines do not address transfers of • entitlement. The Land Use Element contains provisions generally authorizing transfers of entitlement in accordance with procedures established in the Municipal Code and specifically authorizing transfers in certain planning areas. Staffs preliminary opinion is that voter approval would not be required of any Amendment that seeks to transfer density or intensity from one parcel or area to another since the transfer would not Increase(s) the maximum amount of traffic that allowed uses could generate." Staff will conduct additional analysis assuming direction to do so from the City Council. Staff will prepare proposed amendments consistent with direction from the City Council. Robert Burnham City Attorney • JOHN E, BUTTOLPH ATTORNEY AT LAW February 24, 2004 Members of the City Council City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 5S3 _dy- 5020 CAMPUS DR., NEWPORT BEACH, CA 92660 Subject: Study Session on Measure S Guidelines Gentlemen: TEL: (949) 955 -2033 FAX: (949) 955 -2036 EMAIL: buttolph2 @attbi.com Today I revisit several inconsistencies between section 423 of the City Charter - commonly known as Measure S - and the Council's Measure S implementation guidelines. Section 423 does not require you to adopt any guidelines whatsoever. But when you do, such guidelines "shall be consistent with the amendment and its purposes and findings." Such purposes and findings provide generally for voter approval of any major change to the City's General Plan. On its face, section 423 applies to every General Plan amendment that proposes to increase allowable commercial floor area ( "intensity ") by more than 40,000 square feet. This intensity threshhold is in addition to any independently calculated increase in peak hour trips. That is, the intensity criteria is separate and distinct from an increase in peak hour trips. Any project which adds more than 40,000 square feet to what is allowed under the General Plan requires voter approval. Period. Section 423 also makes it clear that any election required by this section is to be held after the Council approves the amendment. Not before the Council votes. Not concurrent with a Council vote. Not an advisory vote. And not to substitute for the Council's responsibility to approve or reject an amendment. But in the express language of the statute, "The City Council shall set any election required by this section for the municipal election next following City Council approval of the amendment.." The language is mandatory - the election SHALL FOLLOW the Council's approval of the amendment. No approval, no election. Last November I wrote to the Council regarding these same concerns. Since then I've met and exchanged correspondence with the City Attorney, and I've had several discussions with members of the Greenlight group. I've listened to each side and learned alot about the context of these issues. I was very pleased with JOHN E. BUTTOLPH ATTORNEY AT LAW the tone and substance of the City Attorney's January 16 letter to Greenlight's counsel Doug Carstens, particularly where Mr. Burnham wrote: "This office intends to submit to the City Council modifications to the Guidelines that would require all general plan amendments for commercial property to be stated in terms of floor area AND the unit of measurement used in the ITE Manual." In the spirit of Mr. Burnham's intention, I'd like to offer the following specific proposals for revisions to the Guidelines: 1. DEFINITIONS - "Entitlement" (Guidelines, page 2): Delete at line 2 the phrase "or other measure of density or intensity..." Then, as revised, the definition of "Entitlement" reads: "For purposes of these guidelines, the word 'Entitlement' means the maximum amount of Floor Area or Dwelling Units authorized by the General Plan for each allowed use on any property and /or in any geographical area." And add a second sentence: "In addition, the entitlement may also include descriptors such as hotel rooms or theater seats." 2. METHODOLOGY - "Floor Area ". Amend the second sentence which begins "In the event..." to read as follows: "If the current Entitlement for a Non - Residential Use is designated in terms other than Floor Area (such as hotel rooms or boat slips) a designation in terms of Floor Area shall be added to the General Plan and the Floor Area designation shall be used to determine whether an amendment requires voter approval under the intensity criteria of section 423." 3. PROCEDURES - A2: Amend the first sentence to read: "All such amendments shall indicate the maximum amount of Floor Area permitted by the current General Plan and the maximum amount of Floor Area to be permitted if the amendment is approved." - Al: Amend the first sentence to read consistently with A2. I urge the Council to modify the existing guidelines to make them consistent with the express language of section 423, effective March 27, 2001, the date the guidelines were first adopted. I will be glad to answer any questions. R @spectfylly submitt�, //JVHN EARL BUTTOLPH ,JEBms