HomeMy WebLinkAbout20 - Measure S GuidelinesCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 28
March 23, 2004
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Robert Burnham, City Attorney
644 -3131, rburnham(a)city.newport- beach.ca.us
SUBJECT: Measure S Guidelines
Proposed Amendments
ISSUE:
Should the City Council amend the existing Measure S Guidelines to streamline and
clarify the procedures for evaluating General Plan amendments (amendments)?
• RECOMMENDATION:
If desired, adopt some or all of the proposed modifications to the Measure S Guidelines
that accompany this memo (Exhibits A through F).
INTRODUCTION:
Measure S added Section 423 (Section 423) to the City Charter. According to Section
423, certain 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 101 peak hour trips (traffic), 101 dwelling
units (density) and 40,001 square feet "of floor area" (intensity). These thresholds are
reduced by 80% of the trips, density and intensity resulting from amendments in the
same statistical area that were approved by the City Council within the ten years
preceding approval of the amendment under consideration. Measure S "encouraged"
the City Council to adopt guidelines to implement Section 423.
The Measure S Guidelines (Guidelines) were adopted in March 2001. On February 24,
2004, this office presented the City Council with a report outlining various aspects of the
Guidelines that, based on practical experience, could be appropriate subjects for
modification. This memo discusses the majority of those topics and proposes
modifications for Council consideration and possible adoption (Exhibits A through F).
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DISCUSSION: •
"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. In our earlier report we suggested that this
language might be considered 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. However, upon further review and after consulting
with special counsel, we believe that this language could, in the event of a legal
challenge, be considered a "savings clause." In other words, a court might uphold
the guidelines against a legal challenge because the City Council may depart from a
strict application if necessary to ensure consistency with Measure S. We have
prepared modifications that would delete the "deviation' provision (Exhibit A and
modifications to the current provision that, in staff's opinion, more carefully describes
the objective — consistency with Measure S (Exhibit A -1). Staff is recommending
adoption of the text of both Exhibits.
• "Allowed Uses" This 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. We have prepared Guideline modifications (Exhibit
B) removing excess language if the City Council wishes to streamline this provision. •
"Approval" City Council "approval" of an amendment subject to the voter
approval requirements of Section 423 does nothing more than give the voters the
opportunity to approve or disapprove the amendment. We have prepared proposed
Guideline provisions (Exhibit C) that explain the effect of City Council "approval" and
clarify that any related land use action (such as a zoning amendment or use permit)
does not become effective unless the amendment is approved by the voters.
• "Non- Residential Use Category" We have prepared modifications (Exhibit
D) to this section that eliminate excess verbiage and delete the exclusion for group
residential use and limited care residential use.
• "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. This longstanding practice is based on the fact that "rooms" are the primary
"units of measurement" used by traffic engineers in calculating traffic generated by
hotels. In this respect the Guidelines are consistent with the express purpose of
Measure S (traffic congestion) and nothing in Measure S requires the City to alter its
long- standing practice of entitling hotels and other uses in a manner that most
closely reflects their trip generating characteristics. However, without requiring
future hotel and theatre entitlement to be specified in terms of rooms or seats and
floor area, certain amendments that exceed the "intensity' threshold but generate 0
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• very little peak hour traffic — such as the Marinapark Resort — would not require voter
approval pursuant to Section 423.
The public discourse regarding Measure S has also revealed that some believe the
City uses a procedure for evaluating and considering amendments that require voter
approval that differs from procedures for amendments that do not require voter
approval. While the City has never used a different procedure, staff believes the
City Council may want to consider Guideline provisions that confirm our practice of
using the same procedures and providing the public with the same or more
information in the case of amendments that require voter approval.
Accordingly, we have prepared modifications to the Guidelines (Exhibit E) that: (a)
delete existing language that requires amendments designated in terms other than
floor area (such as hotels and boat slips) to be evaluated solely on the "differential in
Peak Hour Trips "; (b) confirm that amendments that require voter approval will be
processed — and the public provided with the same or more information - as
amendments that do not require voter approval; and (c) require all "Non - Residential'
amendments initiated after March 27, 2001 to be stated in terms of floor area and, if
different than floor area, the most appropriate "unit of measurement' specified in the
Manual prepared by the Institute of Traffic Engineers (ITE Manual that the City is
required to use pursuant to Measure S).
. "Procedures" The procedures in the Guidelines are much more detailed
than necessary. Staff has found that applicants for even very small amendments
are fully aware of Section 423 and that the "initial report' is unnecessary. We also
believe that extensive "post- approval' procedures are unnecessary and confusing.
These provisions — including the deferral of the determination as to whether an
Amendment would require voter approval - were the product of legal concerns that,
on further review, are not substantive. Accordingly, we have prepared amended
Guidelines that eliminate unnecessary paperwork, delay and confusion (Exhibit F).
Staff has not had sufficient time to determine if, and under what circumstances,
transfers of entitlement require amendments and how those amendments should be
evaluated in terms of Section 423 requirements so we are not proposing any proposed
Guidelines on this particular topic. Guideline amendments require the affirmative vote
of six members of the City Council and we suggest the City Council consider each of
the proposed amendments as the subject of individual motions and votes.
City Attorney
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EXHIBIT A •
On November 7, 2000, the Newport Beach electorate approved Measure S (Exluibit
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. The City Council has, consistent with Measure S, conducted a series of
public meetings to receive input from the public on Measure S and these
Guidelines. The City Council has determined, based on staff analysis and public
input, that these Guidelines are consistent with the express purpose of Measure S.
an,vendmei+t upen a determination, approved by the afffirmatke vete of at least six
EXI-IIB IT A -1
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. The City Council has, consistent with Measure S, conducted a series of
public meetings to receive input from the public on Measure S and these
Guidelines. The City Council has determined, based on staff analysis and public
input, that these Guidelines are consistent with the express purpose of Measure S.
The City Council may deft 4e�from a strict application of these Guidelines
to an amendment-upon a determination, approved by the affirmative vote of at
least six Council members, that such departure ° ^t -ict applicatioi is necessary to
ensure that the Citv Council's decision or determination is consistent with would
be,eeatrary- the express purpose of Measure S.
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EXHIBIT B
A. Allowed Use(s). The term "Allowed Use(s)" means the land use(s)
permitted on property or in a geographical area by the General Plan prior to
approval of an Amendment pertaining to that property or geographical
area. in ,,rtai., cases the Allowed Use(s) e these defined and precise 1.,n
uses that have been applied b.7 a � spe^;{;^ to
O cases, vrC" defined
only in teEms of a Residential LTse o
Use —o- -r, o-- -~ -- -y err—
—eugheiat the
EXHIBIT C •
C. Approval. "Approve" or any con'ugation or variation of that
word (such as approved or approval) means, in the context of a decision on an
amendment, that at least four members of the City Council voted in favor of a
motion approving an amendment. The practical effect of a vote to approve an
amendment that requires voter approval pursuant to Section 423 is nothing more
than the referral of that amendment to the voters for their approval or
disapproval. Accordingly, City Council "approval` of any land use amendment,
agreement or peranit such as a zoiung amendment, use permit or development
agreement) that is processed concurrently with an amendment that requires
voter approval shall not be effective unless and until the voters have approved
that amendment.
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0 EXHIBIT D
F. Non - residential Use (Category). The term Non - residential Use means any
land use (other than a Residential Use) authorized by a Non - residential Use
Category that generates any Peak Hour Trips and includes the land uses
specified in Sections 20.05.040 (public and semi- public), 20.05.050
(conunercial), 20.05.060 (industrial) and 20.05.070 (agriculture) of the Code.
The term "Non- residential Use Category" means one of the six (6) non-
residential land use categories applicable to property or a geographical area
pursuant to the General Plan. The Non - Residential Use Categories are
"Retail Service Commercial", "Administrative Professional and Financial
Conunerciah ", "Recreational and Marine Commercial', "General Industry ",
"Goverrunental, Educational and Institutional Facilities ", and "Recreational
and Environmental Open Space." The term NE)R residential Use a' ^
includes -- a"greup residential use" and ""Iiigred- careresidential tise"as
these terins are defined in the Code.
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EXHIBIT E
13. 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. 1R the
event Ow 1~..o:N,....e t for „ le ie residential rT,.,.:.. .7.,,.:..nated in t,..mts other
than Fleef Area (sueh as lietel reems ev beat slips) the determi-nati-en. as k-e-
whether the Amendffiei# Fequires -voter approval shall ba
the ,l:rr,...,,.Aal :., Peak ueur Trips. If the General Plan authorizes varying
amounts of Floor Area depending on the type of Non - residential Use
(variable floor area limits), the Entitlement for Allowed Use(s) shall be based
on the maximum amount of Floor Area allowed by the General Plan for the
Proposed Use(s). For example, the General Plan allows Floor Area ranging
from 12,000 sq. ft. (restaurant) to 30,000 sq. ft. (warehouse) on a 40,000 sq. ft.
parcel designated "Retail Service Corrunercial" with a variable floor area
Iii-rut. If the Proposed Use is a 22,000 sq. ft. restaurant, the increase in Floor
Area would be 10,000 sq. ft. (the difference between the 22,000 sq. ft.
Proposed Use and the 12,000 sq. ft. Allowed Use).
C. Amendment Procedures /Public Information. The urocedure fol
initiating, evaluating, considering and deciding an amendment that
requires voter approval pursuant to Section 423 shall be the same as, and
provide as much, or more, information to the public about the
amendment, as an amendment that does not require voter approval. In
the case of amendments initiated after March 27, 2001 that have not been
approved by the City Council prior to March 23, 2004, the entitlement for
an), Non- Residential Use Amendment shall be stated in terms of floor area
and the primary "unit of measurement" specified in the ITE Manual for
any specific use (such as rooms in the case of hotels or resorts and seats in
the case of theatres) if the unit of measurement is different than floor area.
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A4. Staff Reports. The Planning Department prepares Planning Corrunission
and City Council staff reports for each Amendment. All Planning
Commission and City Council staff reports on an amendment shall contain
the- information relevant to whether the Amendment, if improved, would
reouire voter avvroval pursuant to Section 423 unless the stove and nature
of the amendment is such that voter approval is clearl3, not required_ te-he
pfevided in 4w initial Repert d thhat :.. C......... t; ,... ..hall Joe . plated as
ehanges a-e pFe esed to the Amendment. The stag r ..,. Ft „hall ..,.,,taro a
the data is pfeyideJ far rr •
finding, deeistenelated to the AmenAment.
ED. City Council Review. The City Council shall e.v Hie Fi x.,1 Relg rt and
determine at the a--noticed public hearing at which any Amendment is
approved if, based on the Fined Report, -the administrative record for the
Amendment including-the axd— testimony presented, the Amendment
requires voter approval pursuant to Section 423. The City Council shall
submit the Amendment to the voters pursuant to Section 423 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
2. 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
3. the Amendment modifies the type or amount of Residential Use or
Non - residential Use specified for the property or geographical area
that is the subject of the Amendment such that the Proposed Use(s) as
approved by the Amendment generate(s) at least one hundred and
one (101) more morning or evening Peak Hour Trips than the
Allowed Use(s) before the Amendment; or
4. the increase in morning or evening Peak Hour Trips, Dwelling
Units or Floor Area resulting from the Amendment when added to
eighty percent (80 %) of the increases in morning or evening Peak
• Hour Trips, Dwelling Units or Floor Area resulting from Prior
Amendments exceeds one or more of the voter approval thresholds
in Measure S as specified in subsections 1, 2 or 3.
E. Calling an Election. In the event the City Council determines that the
Amendment requires voter approval, the City Council shall, at the hearing
at which the Amendment was approved ot- a subsequent hearing held no
more than tliirtp sib (3�0) days after the date of ap �rol val, ma g—tl�e
deter ii atietradopt 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 proponent of the Amendment has entered into a written
agreement with the City to share the costs of the special election.
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CITY OF NEWPORT BEACH
SUPPLEMENTAL CITY COUNCIL STAFF REPORT
Agenda Item No. ?s
March 23, 2004
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Robert Burnham, City Attorney
644 -3131, rburnham (cDcity.newport- beach.ca.us
SUBJECT: Measure S Guidelines
Proposed Amendments
ISSUE:
Consideration of Council Member Rosansky's comments regarding proposed
amendments of the existing Measure S Guidelines (Guidelines).
RECOMMENDATION:
Staff recommends that the modifications (Revised Exhibits D, E and F are attached) be
substituted for the original amendments proposed by Staff.
INTRODUCTION:
Council Member Rosansky is proposing modifications to some of the Guideline
amendments submitted to the City Council as part of the original staff report. Council
Member Rosanksy suggests that Exhibit D (Non - Residential Use Category) be modified
to delete reference to the specific "Non Residential Use categories since they may
change some time in the future. Council Member Rosanksy also suggests that Exhibit
E (Floor Area and Procedures) be modified to more clearly state that, with the exception
of the proposed change to the manner in which hotels and theatres would be entitled,
Measure S did not modify our general plan amendment procedures. Finally, Council
Member Rosanksy suggests that Exhibit F be modified to more clearly state the
information that must be included in Planning Commission and City Council staff reports
and to delete proposed language that would have excused compliance when the
Amendment would clearly not require voter approval.
Robert Burnham, City Attorney
City Attorney
• EXHIBIT D - ROSANSKY
F. Non - residential Use (Categoryl. The term Non - residential Use means any
land use (other than a Residential Use) authorized by a Non - residential Use
Category that generates any Peak Hour Trips and includes the land 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 Category' means a ene ^;� (v non-
residential land use categorvies applicable to property or a geographical
area pursuant to the General _ Plan. The Nei Residenfi i Use rate,,.,.,,
"Berm Sere Cem ere;„
ineludes a ff8u:p residefifial se �a "';FMte' care residential use" as
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EXHIBIT E (ROSANSKY)
B. 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 case of
amendments initiated after March 27, 2001 that have not been approved by the
City Council prior to March 23, 2004, the entitlement for any Non - Residential
Use Amendment shall be stated in terms of floor area and the primary "unit of
measurement" specified in the ITE Manual for any specific use (such as rooms in
the case of hotels or resorts and seats in the case of theatres) if the unit of
measurement is different than floor area. in ' ' the EpAitlemeEA r a N
r-esidei4ial Use is b
3Ciris �1 i rhR r'icic S'zic
vz o^o �n.p sj ��rioax:x: &�9 E't F- tli@- pi{i36ii�q
approval shall be Lased 59j 1., r the ,7'{F e.,*',.1 in ➢ ..1. 14E) Ur T-FiPS. If the
General Plan authorizes varying amounts of Floor Area depending on the type of
Non - residential Use (variable floor area limits), the Entitlement for Allowed
Use(s) shall be based on the maximum amount of Floor Area allowed by the
General Plan for the Proposed Use(s). For example, the General Plan allows
• Floor Area ranging from 12,000 sq. ft. (restaurant) to 30,000 sq. ft. (warehouse)
on a 40,000 sq. ft. parcel designated "Retail Service Commercial' with a variable
floor area limit. If the Proposed Use is a 22,000 sq. ft. restaurant, the increase in
Floor Area would be 10,000 sq. ft. (the difference between the 22,000 sq. ft.
Proposed Use and the 12,000 sq. ft. Allowed Use).
C. Amendment Procedures. The Citv Council has determined that Measure
S does not, except for the information necessary to determine if an
Amendment requires voter approval, contemplate any change to the
manner in which Amendments are initiated, analvzed, or considered.
Accordingly, except to the extent necessary to comply with these
Guidelines, the process for initiating analyzing or considering
Amendments will continue to be a function of State law and the
ordinances, resolutions and policies adopted by the City Council.
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A�. Staff Reports. The Planning Department prepares Planning Commission
and City Council staff reports for each Amendment. All Planning
Conunission and City Council staff reports on an Aamendment shall contain
the-- information relevant to whether the Amendment, if approved, would
require voter approval pursuant to Section 423. The reports shall include
the following information: (i) in the case of a Residential Use Amendment,
the number of dwelling units allowed by the General Plan before and after
the Amendment; (ii) in the case of a Non - Residential Use Amendment, the
amount of floor area allowed by the General Plan before and after the
Amendment; (iii) in all cases, the number of peak hour trips allowed by the
General Plan before and after the Amendment; (iv) ed a table that
identifies each Prior Amendment including any increase in Floor Area
Dwelling Units and Peak Hour Trips, the date on which each Prior
Amendment was approved; (iv) a table adds eighty percent (80 %) of the
peak hour trips, dwelling units and floor area increases resulting from Prior
Amendments to the peak hour trips, dwelling units and /or floor area (as
appropriate) to the Amendment under consideration.
- e ea�rs!nee�r nEri e��e!ite�ees*ie! .esso ..... r+ .
• B13. Cite Council Review. The City Council shall revieNv °d e Final Repar# and
determine at the a-- noticed public hearing at which any Amendment is
approved if, based on the Firial leper', the administrative record for the
Amendment including the acrd— testimony presented, the Amendment
requires voter approval pursuant to Section 423. The City Council shall
' submit the Amendment to the voters pursuant to Section 423 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
2. 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
3. the Amendment modifies the type or amount of Residential Use or
• Non - residential Use specified for the property or geographical area
that is the subject of the Amendment such that the Proposed Use(s) as
approved by the Amendment generate(s) at least one hundred and
one (101) more morning or evening Peak Hour Trips than the
Allowed Use(s) before the Amendment; or
4. the increase in morning or evening Peak Hour Trips, Dwelling
Units or Floor Area resulting from the Amendment when added to
eighty percent (80 %) of the increases in morrdng or evening Peak
Hour Trips, Dwelling Units or Floor Area resulting from Prior
Amendments exceeds one or more of the voter approval thresholds
in Measure S as specified in subsections 1, 2 or 3.
CE. Calling an Election. In the event the City Council determines that the
Amendment requires voter approval, the City Council shall, at the hearin.�
at which the Amendment was avuroved or a subseouent hearing held no
more than thirty si c# (360) days after the date of yal, rxak4rtg— he
deterpni;atiei; 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 proponent of the Amendment has entered into a written
• agreement with the City to share the costs of the special election
. 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
t
FROM: Robert Burnham, City Attorney
644 -3131, rburnhamn city.newport- 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.
c "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.
c "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.
C "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
• 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
• entitlernent..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.
Staff's "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.
FZobert Burnham
City Attorney
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Greenlight
2601 Lighthouse Lane
Corona del.Var, CA 92625
94.9- 721 -1 2 72 1 ph iliparst(4?ca e. rl cT
Mayor Tod Ridgeway and Members of the Ntv,-port Beach City Council
City ofNe -vport Beach
3300 Neupolf Blvd
Neu7port Reach, CA 92663
-Gig mu) AFTER AGENDA_.
>l2arch 22, 2004
Reference Staff Repoli -Measure S Guidelines Proposed Annendnnents' dated March 23, 2004 Agenda Item
28
Dear %layor Ridgeway :nut Mernber6 of the City Council•.
This is to docunnent the official Greeuliglnt position on the referenced Staff Repoli uid to add some
additional rtccmmlntildatioln9 oil needed chaingta that were of litttd in the Staff Report.
Our listing of needed changes and the rationale for thew need is contauied nn the enclosed table of
reeonuneuded changes.
Overall we believe that there m•e uiconsistencies in the Ley m-ea of floor urea requirements. tune of Council
�appioval and deternrn)nticm of applicability to the ?Marina Paris Hotel. As the worduig of these changes
colrfirses us, they gill confuse others trying to interpret these Ouidelnnes nn the filture and need to be
clarified. For eiannple, tvhile staffhas reconunended adding floor area considerations nn one section, the
definition of entitlement still could be interpreted to eiempt hotels from floor urea considerations.
'We have recolnllnelnd'ed wording changes to correct what we believe are deficiencies uld to clarify platter's to
In event filhue nnisunterpretations. These are believed to be the milninnun set needed to briing the Measure S
tnridelines into complianoe with City Charter Section 423. V%le have al-go recommended cording to clear up a
problem that has come to light of dwelling ulnits replaenng conunnercial or other non - residential land teas.
We will be pleased to mist =er uny, questions.
Thank you i l advance for your services to the colmnunity,
Greenligllt
(Original Signed)
Philip L. Arst
CC: John Blrttolph
Douglas Cv:stens
Greelilight Steel iing Conulnittee
Robert Bunilnann
•
0 Enclosure: Recommended Changes to Staff Report Recommendations
•
LI
Exhi
Changes recommended to Staff Report dated March
Rationale
bits
23.2004 for Agenda Item No, 28
A
from Strict Application -- no
�Deviation
r econullendatlon
C
Approval — Strcn]_ly disagree with staff This elinlillates anlbigtlities in the
recollll11el1clstion. definition of cite council approval.
- Insert after second sentence "formal approval can only
take Place afief the City Council leas approved the
completed enviro n metal review pursuant to CEQA and
all other relevant documents via the public hearing
Process,
C.
Approval — Strongly dlsauee with staff
This section does not tithe whether the
reconinlendatlon
approval takes place before of after
L) Change pin'a6t --is llotlliilg Vlore dlall the retelYal of
the voter election. Tv 'o v -ass to claiify
that ainelldniellt to the voter's for their approval of
the aniblgllous P111'asing of the Staff
disapproval to is a full approval of the iniendiiient by
Recommendations sire provided. 'Me
the Council, subject oilly to a Vote of approval or
first provides clear detail of the 1
disapproval by the voters in accordulce vdth Section 423
process and adds the important
before it call tape effect. If the city council cllsapproveC
proVl`lo of what happens -%-'hell the
the arllendlllent, evell though It is sub]ect to Voter
Council disappl'oves all Aineridnient.
approval if passed, the rnnendinent will be considered
second removes the ambiguous
disapproved and not submitted to the voters.
iThe
sentence,
C
2.) Approval — alternate approach to 1.) above.
Remove previous second sentence that contains the
phrase_ "is nothing more than the referral of that
amendment to the voters for their approval or
ciisapprm•al."
D
Non - Residential Ilse Category — No recommendation.
E.
Amendment Procedur•es/Pubhc Information —
I This clarifies the approval process.
Change the deciding to "a> nroville in first sentence,**
There is no definition of deeidul�'
F
Procedures — B. City Council Review — Insert the word
I Clarifies that voter approval takes
••subsequent° before "voter approval_**
, place after Counail approval,
F
Procedure - Post Approval Report - Insert the words "it
I More clarification
has approved after the Amendment in the fil:A
sentence.
,
1
Additional Comments on needed chances beyond
those recommended by staffs
A -1
DEFINITION S D - Chculge first sentence to react °T11e
word " Entltlenient•• Nicolas the nialillllllll amount of floor
area or dwelling ]llllts, aothorized by the General Plan for
i
allowed use on any property or geographical area,**,
The entitlement iu.w also include descriptors Such as
hotel rooms or theater seats where needed to calculate
2
P"': hour traffic trips. 1 0
B
Allowed Uses - Add additional sentence at end of Staff
B
Reconunenclation
If the mnendnient requests a chmlge hl the category of
A lowcd Uscs i.e. changes a Cuuuncicial L" Id Usc to a
Residential land Use. the allowed uses pcnnitted on the
property shall be considered as zero mid the entire
,unount of the unel dnient is to be used to deteillline the
requirement for �,'otei' approval,lchsapproval wider Section
421
I
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Effective date of these changes to Measure S
Guidelines— Please state as Nlnrch 27, 2001
A1101
sente
Reco
If the
the c
chml;
Resic
penll
cow;i
a111C11
used
voter
Sacti
CI
•
JOHN E , B U TTO LP H 5020 CAMPUS DR NEWPORT BEACH, CA 92660
\TTORNEV AT LAN TEL: (949) 955 -2033
FAX: (949) 955 -2036
-- EMAIL: buttolph2 @attbi.com
March 22, 2004
Mayor and Members of the City Council
City of Newport Beach
3300 Newport Blvd
Newport Beach, CA 92663
Re: Measure S Guidelines Proposed Amendments
Agenda Item #28, March 23, 2004
Gentlemen:
Having reviewed the staff report I submit the following
comments for your consideration:
Approval: The proposed revision does not accurately
describe the effect of the council's approval pursuant to section
423. "Approval" involves substantially more than mere referral
. for voter approval. It marks completion of a thorough and
painstaking review process and represents the Council's informed
determination that the General Plan should be amended in
accordance with the Applicant's request. The Guidelines must
clearly state that if the Council rejects the application for an
amendment, their decision is final and the amendment is not
submitted to the voters. Section 423 is clear: the Council sets
an election only if the Council approves an amendment. AND, the
election is set after the Council approves the amendment.
I have seen the comments of the Greenlight Steering Committee
objecting to the staff's recommendation concerning "approval ". I
urge you to adopt Greenlight's first draft alternative, or as
modified herein: that is, "..is a full approval of the amendment
by the Council following the Council's review and acceptance of
all environmental reports and planning documents, subject only to
ratification of its approval by the voters in accordance with
section 423. If the Council rejects the amendment, section 423
neither requires nor authorizes its submission to the voters. An
amendment shall be submitted to the voters only following the
Council's full approval of the amendment."
I also concur with Greenlight's comments regarding the
definition of "Entitlement ".
One final word. I am perplexed and dismayed by the personal
attacks made from the Council dais against the Greenlight
organization and members of its steering committee. Citizen
JOHN E. BUI'TOLPH
=ORNEY AT LAW
activists may be a thorn in the Council's side, but it appears to
me that they are motivated by service to the citizens of Newport
Beach to present their positions on traffic and quality of life
issues. There is no cause for members of the Council to vilify
them for that.
ery trul yours,
N EARL BUTTOL ,
Bms
0
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0
MEASURE S GUIDELINES
INTRODUCTION
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. The City Council
has, consistent with Measure S, conducted a series of public meetings to receive input
from the public on Measure S and these Guidelines. The City Council has determined,
based on staff analysis and public input, that these Guidelines are consistent with the
express purpose of Measure S. The City Council may deviate from a strict application of
these Guidelines to an amendment upon a determination, approved by the affirmative
vote of at least six Council members, that a strict application would be contrary to the
express purpose of Measure S.
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, the most current edition 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 any Amendment.
A. Allowed Use(s). The term "Allowed Use(s)" means the land use(s) permitted on
property or in a geographical area by the General Plan prior to approval of an
Amendment pertaining to that property or geographical area. In certain cases the
Allowed Use(s) are those defined and precise land uses that have been applied by
a resolution specific to that property or a geographical area. In the majority of
cases, the Allowed Use(s) are defined only in terms of a Residential Use Category
and/or a Non - residential Land Use Category generally applicable to various
property or geographical areas throughout the City.
B. Amendment. The word "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.
1 i
A -18 0
C. Dwelling Unit. The term "Dwelling Unit" means "dwelling unit" as defined in
Section 20.03.030 of the Newport Beach Municipal Code (Code).
D. Entitlement. The word "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 for each Allowed Use on any
property and /or in any geographical area. The term Entitlement when preceded
by the word "proposed" shall mean the Entitlement requested by an Amendment.
The Entitlement for any Allowed Use on any property or geographical area shall
be based on the text of the General Plan and the Entitlement Table.
E. 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." •
F. Non - residential Use (Categoryl. The term Non- residential Use means any land use
(other than a Residential Use) authorized by a Non- residential Use Category that
generates any Peak Hour Trips and includes the land 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 Category "
means one of the six (6) non - residential land use categories applicable to property
or a geographical area pursuant to the General Plan. The Non - Residential Use
Categories are "Retail Service Commercial ", "Administrative Professional and
Financial Commercial', "Recreational and Marine Commercial ", "General
Industry ", "Governmental, Educational and Institutional Facilities ", and
"Recreational and Environmental Open Space." The term Non - residential Use also
includes a "group residential use" and "limited care residential use" as those terms
are defined in the Code.
G. Peak Hour Trips. The term "Peak Hour Trips" means the number of vehicle trips
equal to the applicable Peak Hour Trip Rate for the Allowed Use(s) and the
Proposed Use(s) as specified in the Trip Rate Table (Exhibit B) multiplied by the
Entitlement (the appropriate quantity of the relevant "unit" of measurement as
stated in the Trip Table). When these Guidelines require a statement or calculation
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7
. A -18
of Peak Hour Trips, the morning and evening Peak Hour Trips shall each be
provided and listed separately.
H. Peak Hour Trip Rate. The term "Peak Hour Trip Rate" means the morning and
evening average weekday rate during the peak hour of the adjacent street traffic
for the Allowed Use(s) and Proposed Use(s) as specified in the Trip Rate Table and
as derived from the ITE Manual. The Peak Hour Trip Rate for the Non - residential
Use Categories are as specified in the Trip Rate Table. In the event the Trip Table
does not contain a Peak Hour Trip Rate for an Allowed Use or a Proposed Use, the
Peak Hour Trip Rate shall be based on the morning and evening weekday average
Peak Hour Trip Rate for the most comparable land use in the Trip Table. The most
comparable land use in the Trip Table shall be determined by the City Council
based on recommendation of the Planning Director and the Transportation and
Development Services Manager (Traffic Engineer). The morning and evening Peak
Hour Trip Rates shall be listed separately.
I. Prior Amendment. The term "Prior Amendment" means an Amendment that:
1. 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 Section 423;
2, was approved by the City Council after December 15, 2000;
3. was approved within ten years prior to the date the City Council approved
the Amendment being evaluated pursuant to Section 423 and these
Guidelines; and
4. was determined by the City Council, or by a final judgment of a court of
competent jurisdiction, not to require voter approval pursuant to Section
423 and these Guidelines.
J. Proposed Use(s). The term Proposed Use shall mean the land use(s) proposed for
property or a geographical area by an Amendment. Proposed Use(s) may be
defined and precise land uses and /or a Residential Use Category or Non-
residential Use Category.
K. Residential Use Category. The term "Residential Use Category" means one of four
residential use categories described in the General Plan. The Residential Use
• Categories are "Single Family Detached ", "Single Family Attached ", "Two Family
3
A -18
Residential ", or "Multi- family Residential." The term Residential Use Category
does not include a group residential use or a limited residential care use as those
terms are defined in the Code.
L. 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 (Exhibit C). The term Statistical Area also
means any new Statistical Area established for property annexed to the City
subsequent to October 24,1988 and Exhibit C shall be modified to depict any new
Statistical Area.
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.
A. Peak Hour Trips. Section 423 requires "voter approval" of any "major amendment
to the Newport Beach General Plan." According to Section 423, a "'major _•
amendment' is one that significantly increases the maximum amount of traffic that
allowed uses could generate." The term "significantly increases" means "over 100
peak hour trips (traffic)." Measure S and Section 423 do not define the terms
"allowed uses" and "maximum amount of traffic" and they do not specify a
method of calculating any increase in traffic resulting from an Amendment. The
General Plan contains Non - residential Use Categories that authorize a wide range
of land uses with variations in trip generation rates that make infeasible the use of
the highest Peak Hour Trip Rate of any allowed use. Accordingly, for property or
geographical areas with Non - residential Use Categories, the Peak Hour Trip Rate
represents a blend of the ITE trip rates for the most prevalent uses within each
category. The City Council has determined that the methodology and
assumptions in these Guidelines represent the most reasonable method of
determining the amount of traffic that is "authorized" under the existing General
Plan and the increase in Peak Hour Trips resulting from an Amendment. The
following methodology shall be used for calculating the Peak Hour Trips of
Allowed Use(s) and the increase, if any, in the Peak Hour Trips resulting from
Proposed Use(s) if an Amendment is approved:
1. The Peak Hour Trips that Allowed Use(s) could generate before and after
the Amendment shall be calculated by multiplying the Entitlement of each
Allowed Use(s) for the property or geographical area by the morning and
4
A -18
evening Peak Hour Trip Rate for that Allowed Use as specified in the Trip
Table. If the Allowed Use(s) are designated in terms of one or more Non-
residential Use Categories the Peak Hour Trip Rate for the Non - residential
Use Category from the Trip Rate Table shall be used. If the Allowed Use(s)
are designated in terms of specific land uses, the Peak Hour Trip Rate for
the Allowed Use with the highest Peak Hour Trip Rate shall be used.
2. The Peak Hour Trips that Proposed Use(s) could generate shall be
calculated by multiplying the proposed Entitlement of each Proposed Use
for the property or geographical area by the morning and evening Peak
Hour Trip Rate for that Proposed Use as specified in the Trip Table. If the
Proposed Use(s) are designated in terms of one or more Non - residential Use
Categories the Peak Hour Trip Rate for the Non - residential Use Category
from the Trip Rate Table shall be used. If the Proposed Use(s) are
designated in terms of specific land uses, the Peak Hour Trip Rate for the
Allowed Use with the highest Peak Hour Trip Rate shall be used.
3. The increase, if any, in Peak Hour Trips resulting from an Amendment shall
be calculated by subtracting the morning and evening Peak Hour Trips of
• the Allowed Use(s) from the morning and evening Peak Hour Trips,
respectively, of the Proposed Use(s) and selecting the larger number.
0
B. 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
Entitlement for a Non - residential Use 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 the differential in
Peak Hour Trips. If the General Plan authorizes varying amounts of Floor Area
depending on the type of Non - residential Use (variable floor area limits), the
Entitlement for Allowed Use(s) shall be based on the maximum amount of Floor
Area allowed by the General Plan for the Proposed Use(s). For example, the
General Plan allows Floor Area ranging from 12,000 sq. ft. (restaurant) to 30,000 sq.
ft. (warehouse) on a 40,000 sq. ft. parcel designated "Retail Service Commercial"
with a variable floor area limit. If the Proposed Use is a 22,000 sq. ft. restaurant,
the increase in Floor Area would be 10,000 sq. ft. (the difference between the 221000
sq. ft. Proposed Use and the 12,000 sq. ft. Allowed Use).
5
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C. 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.
D. Trip Rate Table. The Trip Rate Table contains the morning and evening average
weekday Peak Hour Trip Rate for each land use specified in the ITE Manual. The
information in the Trip Table is based on the vehicle trip rates and related data in
the ITE Manual. The term "unit" in the Trip Rate Table refers to the "unit of
measurement' or "independent variable" that was used in the trip generation
studies that form the basis of the trip rates reflected in the ITE Manual.
E. 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,
when adopted, the provisions of an Entitlement Table. The Entitlement Table shall
describe, by Statistical Area, the Peak Hour Trip, Dwelling Unit and Floor Area
increases, if any, of each Amendment approved by the City Council subsequent to
December 15, 2000. The Entitlement Table shall not include any Amendment
submitted to the voters pursuant to Section 423 and an Amendment shall be •
removed from the Entitlement Table ten (10) years after adoption.
F. 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:
The Amendment(s) with the earliest date(s) of initiation (for example GPA
2001 -1A) shall be deemed approved before an Amendment with a later date
of initiation (for example 2001 -213).
2. 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 -113).
PROCEDURES
This Section describes the information to be provided to the applicant, the Planning
Commission and the City Council during the processing of an Amendment. This Section
also describes the information to be provided and the process to be followed after an
Amendment is approved to detern-dne if voter approval is required by Section 423.
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A. Initial Report. 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 filing, provide the
applicant with an Initial Report that contains the information described in this
subsection.
1. Residential Use Amendment. If an Amendment requests one or more
Dwelling Units, the report shall indicate the number of Dwelling Units
permitted by the existing General Plan and the number of Dwelling Units
requested by the Amendment. The report shall also indicate the number of
Dwelling Units equal to eighty percent (80 %) of the increase in Dwelling
Units resulting from Prior Amendments. The report shall calculate the total
of the increase in Dwelling Units resulting from the Amendment and eighty
percent (80 %) of the increase in Dwelling Units resulting from Prior
Amendments.
2. Non - residential Use Amendment. If an Amendment requests one or more
square feet of Floor Area, the report shall indicate the amount of Floor Area
• permitted by the existing General Plan and the amount of Floor Area
requested by the Amendment. The report shall also indicate the amount of
Floor Area equal to eighty percent (80 %) of the increase in Floor Area
resulting from Prior Amendments. The report shall calculate the total of the
increase in Floor Area resulting from Amendment and eighty percent (80 %)
of the increase in Floor Area resulting from Prior Amendments.
11
3. All Amendments. In all cases, the report shall indicate the number of Peak
Hour Trips permitted by the existing General Plan and the number of Peak
Hour Trips resulting from the Amendment. The report shall also indicate
the number of Peak Hour Trips equal to eighty percent (80 %) of the increase
in Peak Hour Trips resulting from Prior Amendments. The report shall
calculate the total of the increase in Peak Hour Trips resulting from the
Amendment and eighty percent (80 %) of the increase in Peak Hour Trips
resulting from Prior Amendments.
An applicant shall not be entitled to rely on the Initial Report for any purpose. The
Initial Report does not constitute any commitment or representation of the City or
the Planning Director as to whether the Amendment, if approved by the City
Council, will require voter approval. The Initial Report shall be available to the
public.
I
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B. Staff Reports. The Planning Department prepares Planning Commission and City
Council staff reports for each Amendment. All Planning Commission and City
Council staff reports on an amendment shall contain the information required to
be provided in the Initial Report and that information shall be updated as changes
are proposed to the Amendment. The staff report shall contain a statement
inserted above the material from the Initial Report (updated) that the data is
provided for "information only" and is not relevant to any finding or decision
related to the Amendment.
C. Post Approval Report. The Planning Director shall within thirty (30) days after
approval of an Amendment, prepare and submit to the City Council a report that
provides the information required in the Initial Report that has been updated to
reflect the final City Council action (Final Report). The Final Report shall also
include a table that identifies each Prior Amendment including any increase in
Floor Area, Dwelling Units and Peak Hour Trips and the date on which each Prior
Amendment was approved. The Final Report shall also contain any other
information that is relevant to the City Council review specified in subsection D.
D. City Council Review. The City Council shall review the Final Report and
determine at a noticed public hearing if, based on the Final Report, the
administrative record for the Amendment and testimony 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
2. 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
3. the Amendment modifies the type or amount of Residential Use or Non-
residential Use specified for the property or geographical area that is the
subject of the Amendment such that the Proposed Use(s) as approved by
the Amendment generates) at least one hundred and one (101) more
0
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• A -18
morning or evening Peak Hour Trips than the Allowed Use(s) before the
Amendment, or
4. the increase in morning or evening Peak Hour Trips, Dwelling Units or
Floor Area resulting from the Amendment when added to eighty percent
(80 %) of the increases in morning or evening Peak Hour Trips, Dwelling
Units or Floor Area resulting from Prior Amendments exceeds one or more
of the voter approval thresholds in Measure S as specified in subsections 1,
2or3.
E. Calling an Election. In the event the City Council determines that the Amendment
requires voter approval, the City Council shall, no more 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 proponent of the Amendment has entered into a written agreement
with the City to share the costs of the special election.
• Adopted — March 27, 2001
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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.
• Exhibit A 1
A -1S 0
Third. Findings. 1. In planning the growth of their city and protecting its quality of
life, a prime concern of the people of Newport Beach is to avoid congestion and
gridlock from too much traffic.
2. The General Plan guides growth in the City of Newport Beach by designating land
use categories for all lands in the City, and providing limits on the allowed density and
intensity of use for each land use category.
3. The General Plan already provides for additional growth in the City; if all
development allowed by the General Plan were to be built, the traffic generated in the
City would increase by about 20 %.
4. The people, whose quality of life is at stake, should have the power to disapprove
any proposed General Plan amendment that may significantly increase traffic
congestion beyond that which could already occur from development under the
General Plan.
Fourth. Implementation. 1. It is the intent of the foregoing amendment to the City
Charter of the City of Newport Beach that, to the maximum extent permitted by law, it
apply to all amendments to the General Plan approved by the Newport Beach city
council after the time of filing of the Notice Of Intent To Circulate Petition, provided
that it shall not apply to any amendment for a development project which has obtained
a 'bested right" as of the effective date of the foregoing amendment to the City Charter.
A "vested right" shall have been obtained if:
(a) The project has received final approval of a vesting tentative map. As to such
vesting tentative maps, however, they shall be exempt only to the extent that
development is expressly authorized in the vesting tentative map itself; or
(b) The project has obtained final approval of a Development Agreement as
authorized by the California Government Code; or
(c) The following criteria are met with respect to the project:
(i) The project has received a building permit, or where no building permit is
required, its final discretionary approval, and _.._.
(ii) Substantial expenditures have been incurred in good faith reliance on the
building permit, or where no building permit is required, the final discretionary .
Exhibit A 2
r ,
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.
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• EXHIBIT A
Section 423. Protection from Traffic and Densitv.
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 follow =ing "Second"
through "Seventh ":)
Second. Purpose. It is the purpose of the amendment to give the voters the power to prevent
Newport Beach from becoming a traffic- congested city, by requiring their approval for any
change to the City's General Plan that may significantly increase allowed traffic; and also to
make sure that major changes do not escape scrutiny by being presented piecemeal as a
succession of small changes.
Third. Findings. 1. In planning the growth of their city and protecting its quality of life, a
prime concern of the people of Newport Beach is to avoid congestion and gridlock from too
much traffic.
•
2. The, General Plan guides growth in the City of Newport Beach by designating land use •
categories for all lands in the City, and providing limits on the allowed density and intensity of
use for each land use category.
3. The General Plan already provides for additional growth in the City; if all development
allowed by the General Plan were to be built, the traffic generated in the City would increase by
about 20 %.
4. The people, whose quality of life is at stake, should have the power to disapprove any
proposed General Plan amendment that may significantly increase traffic congestion beyond that
which could already occur from development under the General Plan.
Fourth. Implementation. 1. It is the intent of the foregoing amendment to the City Charter of
the City of Newport Beach that, to the maximum extent permitted by law, it apply to all
amendments to the General Plan approved by the Newport Beach city council after the time of
filing of the Notice Of Intent To Circulate Petition, provided that it shall not apply to any
amendment for a development project which has obtained a "vested right" as of the effective date
of the foregoing amendment to the City Charter. A "vested right" shall have been obtained if:
(a) The project has received final approval of a vesting tentative map. As to such vesting
tentative maps, however, they shall be exempt only to the extent that development is expressly
authorized in the vesting tentative map itself; or
(b) The project has obtained final approval of a Development Agreement as authorized by •
the California Government Code; or
(c) The following criteria are met with respect to the project:
(i) The project has received a building permit, or where no building permit is required,
its final discretionary approval, and
(ii) Substantial expenditures have been incurred in good faith reliance on the building
permit, or where no building permit is required, the final discretionary approval for the project;
and
(iii) Substantial construction has been performed in good faith reliance on the building
permit, or where no building permit is required, on the final discretionary approval.
Phased projects shall qualify for vested rights exemptions only on a phase by phase basis
consistent with California law.
2. The city council is encouraged to adopt guidelines to implement the foregoing amendment to
the City Charter of the City of Newport Beach following public notice and public hearing,
provided that any such guidelines shall be consistent with the amendment and its purposes and
findings. Any such guidelines shall be adopted by not less than six affirmative votes, and may •
be amended from time to time by not less than six affirmative votes.
• 3, The City shall take all steps necessary to defend vigorously any challenge to the validity of
the foregoing amendment to the City Charter of the City of Newport Beach.
4. Peak hour trip generation rates shall be calculated using the most recent version of the Trip
Generation Manual of the Institute of Transportation Engineers. The city may fine -tune these
rates, but not to less than 95% of the rates in the Manual.
Fifth. Attachment. Attached to this petition is a copy of page 89 of the Land Use Element of
the General Plan, showing the "Statistical Areas" of the City of Newport Beach.
Sixth. Construction. Nothing herein shall be construed to make illegal any lawful use
presently being made of any land or to prohibit the development of any land in accordance with
the provisions of the City's General Plan in force at the time of filing of the Notice of Intent to
Circulate Petition.
Seventh. Severability. If any part of this initiative is declared invalid on its face or as applied
to a particular case, such decision shall not affect the validity of the remaining parts, or their
application to other cases. It is hereby declared that each part of this initiative would have been
adopted irrespective of the fact that any one or more other parts be declared invalid. "Part" is
generic, including but not limited to: Word, clause, phrase, sentence, paragraph, subsection,
section, and provision.
•
•
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 20
April 27, 2004
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Robert Burnham, City Attorney
644 -3131, rb urn ham{c7s.city.newport-beach ca. us
SUBJECT: Measure S Guidelines
Proposed Amendments
ISSUE:
Should the City Council amend current Measure S Guidelines to streamline and clarify
the procedures for evaluating Land Use Element amendments that have the potential to
increase "allowed intensitv."
RECOMMENDATION:
If desired, adopt some or all of the proposed amendments to the Measure S Guidelines
that accompany this memo (Exhibit A through F) or direct staff to revise some or all of
the proposed amendments and re- submit them for City Council consideration.
INTRODUCTION:
The voters approved Measure S in November 2000. 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 any Amendment that "significantly" increases the "maximum
amount of traffic that allowed uses could generate or ... allowed density or intensity."
(underlining added) An amendment "significantly increases" intensity if, individually or
when added to 80% of the intensity added by other amendments within the same
statistical area adopted by the City Council within the previous 10 years, it adds more
than 40,000 square feet "of floor area ". Measure S "encouraged" the City Council to
adopt guidelines to implement Section 423.
The Measure S Guidelines (Guidelines) were adopted in March 2001. On February 24,
2004, this office presented the City Council with a report outlining various aspects of the
Guidelines that, based on practical experience and comments from the public, could be
appropriate subjects for modification. On March 23, 2004, the City Council considered
six possible modifications and directed staff to revise the language and resubmit
proposed amendments at the April 27, 2004 meeting. This memo attempts to
summarize the direction given by the City Council, highlight additional issues that have
come to light during the drafting process and transmit proposed amendments.
DISCUSSION:
• "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 could, in the event of a legal
challenge, be considered a "savings clause" and we are recommending minor
modifications that, in our opinion, more accurately explain the concept (Exhibit A).
• "Allowed Uses" This 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. We have prepared modifications (Exhibit B) that
remove excess language should the City Council wish to streamline this provision.
• "Approval' City Council "approval' of an Amendment that is subject to the
voter approval requirements of Section 423 does not adopt the Amendment — rather
the action means the electorate has the opportunity to vote on the Amendment. We
have prepared proposed Guideline provisions (Exhibit C) that explain the
significance of City Council approval, confirm that the Amendment will be processed
according to our long- standing practice and clarify that any related land use action
such as a zoning amendment does not become effective unless the Amendment is
approved by the voters. The Guidelines do not currently address the approval issue
and Exhibit C would, if adopted, be inconsistent with the agreement between the
City and Sutherland /Talla that provides the City Council will submit the Marinapark
Resort project to the voters without first voting to approve it.
• "Non- Residential Use Category" We have prepared amendments (Exhibit
D) to this section that eliminate excess verbiage and delete the exclusion for group
residential use and limited care residential use.
• "Floor Area Calculation" Previous reports had focused on issues related
to how the City should deal with non - residential land uses — such as large hotels
(rooms) and theaters (seats) — that were entitled in terms other than floor area.
Section 423 requires voter approval of Amendments that significantly increase the
"intensity (floor area) of allowed uses" so the determination of allowed intensity is
critical to calculation of any increase proposed by an Amendment. In drafting
proposed revisions, staff began to realize that the calculation of allowed intensity
was somewhat complicated when Amendments involved variable floor area ratios.
The proposed amendments (Exhibit E) address both issues.
The Land Use Element, with the exception of land uses like hotels and theatres,
employs the three methods of specifying allowed intensity. Some parcels or
geographic areas are allocated a specific amount of floor area (specific floor area
allocation), some are assigning a fixed floor area ratio (fixed floor area ratio) and
some are assigned a variable floor area ration. The allowed intensity for parcels or
geographic areas with variable or fixed floor area rations are calculated by
multiplying the floor area ratio by the gross land area of the parcel.
The calculation of allowed and proposed intensity is easy with specific floor area
allocations and fixed floor area ratios but can be more complicated with variable floor
area ratios. The Land Use Element embraces the concept of a variable floor area
ratio — with lower floor area ratios for high traffic generating uses and higher floor
area ratios for lower traffic generating uses. In most cases, staff will use the "base
FAR" as the basis for calculating allowed and proposed intensity of Amendments
involving variable floor area ratios. However, we have drafted provisions in Exhibit E
that allow for the use of a "maximum FAR" if the Amendment contains assurances
that the property will be limited to maximum FAR uses.
Staff has also drafted two alternatives for addressing the problem inherent in
determining existing intensity for those uses — such as large hotels and one large
theater - that are entitled in terms rooms or seats. Alternative A in Exhibit D
proposes that existing intensity would be the greater of the floor area specified in the
Estimated Growth Table or the floor area on the ground. Alternative B proposes
only use of the floor area in the Estimated Growth Table. As you know, the City has
assigned approximately 1000 square feet of floor area for each hotel room and 15
square feet for each theater seat in the Estimated Growth Table. Both Alternatives
require Amendments not yet approved to be stated in terms of floor area and the unit
of measurement specified in the ITE Manual.
• "Procedures" The procedures in the Guidelines are much more detailed
than necessary. 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. Accordingly, we have prepared amended Guidelines that eliminate
unnecessary paperwork and delay (Exhibit F).
Guideline amendments require the affirmative vote of six members of the City Council
and we would encourage the City Council to consider each of the proposed
/ame ments as the subject of individual motions and votes. Staff doesn't believe that
or the CEQA Guidelines require an environmental document for this action.
Burnham
City Attorney
EXHIBIT A
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. The Citv Council has, consistent with Measure S, conducted a series of
public meetings to receive input from the public on Measure S and these
Guidelines. The City Council has determined, based on staff analysis and public
input, that these Guidelines are consistent with the express purpose of Measure S.
The City Council may = -.r -from a strict application of these Guidelines
a determination, approved by the affirniative rote of at
least six Council members, that - . - .
the express purpose of Measure 5
EXHIBIT B
A. Allowed Use(s). The term "Allowed Use(s)" means the land use(s)
permitted on property or in a geographical area by the General Plan prior to
approval of an Amendment pertaining to that property or geographical
area.
EXHIBIT C
C. Approval.
In the context of an Amendment that requires voter approval pursuant to Section
423, City Council "approval' does not adopt the Amendment - rather - the
action means the Amendment is submitted to the voters for approval or
disapproval. City Council approval of any land use permit or approval that is
processed concurrently with an Amendment that requires voter approval shall
not be effective unless and until the voters have approved the Amendment. An
Amendment shall not be approved until the Planning Commission and City
Council have conducted noticed public hearings as required by law and an
environmental document has been certified pursuant to the California
Environmental Quality Act (CEQA) and the CEQA Guidelines.
EXHIBIT D
F. Non - residential Use (Category). The term Non - residential Use means anv
land use (other than a Residential Use) authorized by a Non - residential Use
Category that generates any Peak Hour Trips and includes the land 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 Category" means any non - residential land
use category applicable to property or a geographical area pursuant to the
General Plan
EXHIBIT E
B. Intensity.
(i) Purpose. The purpose of this Section is to assist the City Council,
Planning Commission, staff, the public and property owners in
understanding and calculating the "intensity... of allowed uses" for any
parcel or geographic area (allowed intensity) and the extent of any
increase in allowed intensity resulting from approval of an Amendment.
This Section is relevant only to Non - Residential Uses.
(ii) Introduction. The Land Use Element, with the exception of those
special land uses described in subsection (iv), employs the following
methods of specifying the allowed intensity: (a) allocating a specific
amount of floor area (specific floor area allocation); (b) assigning a fixed
floor area ratio (fixed floor area ratio) with the allowed intensity
calculated by multiplying the floor area ratio by the gross land area of the
parcel; (c) assigning a variable floor area ratio (most commonly 0.5/0.75)
with the allowed intensity calculated by multiplying the applicable floor
area ratio by the gross land area of the parcel
(iii) MethodoloQV. The increase in allowed intensity resulting from a
proposed amendment (proposed intensity) shall be calculated by
subtracting the allowed intensity from the proposed intensity. The
allowed intensity and proposed intensity shall be calculated in accordance
with the methodology specified in this section.
(a) For an Amendment that does not involve a variable floor area ratio,
the allowed and proposed intensity are the specific floor area
allocation or the fixed floor area ratio multiplied by the gross land
area.
(b) For an Amendment where the allowed and /or proposed intensity
are based on a variable floor area ratio, the allowed intensity and/or
proposed intensity shall be the "base FAR" (0.5) multiplied by the
gross land area unless the conditions in subsection (c) are satisfied.
(c) For an Amendment where the proposed intensity is based on a
variable floor area ratio and assurances that some or all of the parcel or
geographic area shall be limited to "maximum FAR" (0.75) land uses
as specified in the Zoning Code, the allowed intensity and proposed
intensity shall be the gross land area multiplied by the weighting
factors in Section 20.63.040 of the Zoning Code.
(iv) Special Uses/ Introduction. The Land Use Element has historically
entitled land uses on the basis of the most common "unit of
measurement" utilized in the ITE Manual for calculating the peak hour
traffic generated that land use. The use of the appropriate "unit of
measurement" ensures that the Land Use and Circulation Elements are, as
required by State law, properly correlated. Floor area is the most common
unit of measurement in the ITE Manual but some in the case of some land
uses - such as hotels and theatres (seats) a different metric is used.
Consistent with the ITE Manual, the City has historically entitled some
large hotels in terms of rooms and one theatre in terms of seats. The City
has, in the "Estimated Growth Tables" for those statistical areas in which
special uses are located, assigned approximately 1000 square feet of floor
area for each hotel room and 15 square feet for each theater seat.
(Alternative A)
(vi) Special Uses /Methodologrv. The "allowed intensitv" of a
parcel that is entitled using a unit of measurement other than floor area
shall be determined on the basis of the floor area assigned to that special
use in the Estimated Growth Table for the Statistical Area in which the
relevant parcel or geographic area is located or the amount of floor area
existing on the parcel at the time the application for the Amendment is
filed, whichever is greater. Amendments for special uses that have not
been approved prior to the effective date of this section shall be stated in
both floor area and the appropriate unit of measurement utilized in the
Trip Rate Table.
(Alternative B)
(vi) Special Uses/ Methodolo v. The "allowed intensity" of a
parcel that is entitled using a unit of measurement other than floor area
shall be determined on the basis of the floor area assigned to in the
Estimated Growth Table that references the relevant parcel or geographic
area. Amendments for special uses that have not been approved prior to
the effective date of this section shall be stated in both floor area and the
appropriate unit of measurement utilized in the Trip Rate Table.
EXHIBIT F
_:. Staff Reports. The Planning Department prepares Planning Commission
and City Council staff reports for each Amendment. All Planning
Commission and City- Council staff reports on an _ - mendment shall contain
- informatiun
City Council Review. The City Council shall
dewrmine at nutted ublic hearvrg
if, based nn -. -tl;e adrr nistratiyu record fur the
%mcndment _ _ .._- testimonv 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
2. 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
3. the Amendment modifies the type or amount of Residential Use or
Non - residential Use specified for the property or geographical area
that is the subject of the Amendment such that the Proposed Use(s) as
approved by the Amendment generate(s) at least one hundred and
one (101) more morning or evening Peak Hour Trips than the
Allowed Use(s) before the Amendment; or
4. the increase in morning or evening Peak Hour Trips, Dwelling
Units or Floor Area resulting from the Amendment when added to
eighty percent (8096) of the increases in morning or evening Peak
Hour Trips, Dwelling Units or Floor Area resulting from Prior
Amendments exceeds one or more of the voter approval thresholds
in Measure S as specified in subsections 1, 2 or 3.
_ -. Calling an Election. In the event the City Council determines that the
Amendment requires Voter a. 1proval, the Citv Council Shall,
no
more than (. 0) days arrer - -
adopt aresolution calling an election on the Amendment.
The Citti 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 proponent of the Amendment has entered into a written
a l election.
greement with the City to share the costs of the specia
tH gb
+3+7.GY
Greenlight
Post Office Box 3362
Newport Beach, CA 92659
April 27, 2004
Mayor Tod Ridgeway and Members of the Newport Beach City Council
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92663
Dear Mayor Ridgeway:
Ref: Measure S Guidelines Proposed Amendments Agenda Item #20, April 27, 2004
There has been little progress since the March 27 Council meeting. A larger number of
major and some minor problems still remain. On the whole, this document is more
confusing and contradictory that the previous March 27 draft.
Also facing us is a newly received communication from our attorney that a case
management conference has been set by the Superior Court of California, County of
Orange, for July 22, 2004 at 8:30 a.m. in Department C13.
Overall, we can't see how all of our increased list of differences can be straightened out
at the public hearing of April 27, 2004. We think there is too much to work out in public
session. We think that a continuance to the first council meeting in June is needed to
work out these issues. As some of us will be out of town during the second half of May,
the June hearing would be the earliest target for a progress report.
As the present method of operation has produced divergence rather than convergence
upon an agreed set of changes, we request that a three- person committee be appointed to
negotiate these many differences. We suggest a Greenlight representative, a city council
representative and Mr. John Buttolph as a neutral third party.
In particular Exhibits C and E are confusing. The conference is needed to shed some light
on them. We are also confused as to whether the Marina Park Hotel is exempted or not.
1.) INTRODUCTION (Exhibit A)
Changed last sentence in paragraph is strongly opposed. It grants the Council the power
to change the Guidelines to "ensure that the City Council's decision or determination is
consistent with the express purpose of Measure S."
We are now attempting to make the Guidelines consistent with Measure S, subject to a
review by the Court. Subsequent to that, it is up to the court to determine the legal
interpretation of the express purpose of Measure S, not the Council.
Delete the last sentence of Exhibit A be deleted.
2.) Intensity Criteria (Exhibit E)
Contradictory definition between this Exhibit and the definition of "Entitlement"
contained in the DEFINITION section. The existing definition permits hotel room or
theater seats to be used as the basis for entitlements instead of Intensity.
We request the removal of the exclusion for hotels and theaters from this definition
3.) Approval (Exhibit C)
Still allows the City Council to "approve" by just putting the proposed Amendment on
the Ballot.
There is no language in Exhibit C that says that "approve" means to affirmatively
approve the proposal by four votes, as opposed to denying it
We understand that Mr. Buttolph has proposed some wording to correct this situation. A
meeting is needed to resolve the differences between his wording and ours. Our
suggested rewording would be to replace "shall not be effective unless and until the
voters have approved the Amendment." with "signifies that Amendment is approved by
the city council subject only to ratification by the voters as to their approval or
disapproval of it. If disapproved by the City Council, the Amendment is considered
officially disapproved and does not require a vote by the electorate."
4.) Intensity Criteria (Exhibit E)
The wording of the proposed alternatives and methodology is overly complex and subject
to different interpretations.
This section needs to be simplified. Mr. Buttolph has proposed an approach that we
support. However, our approach should be entered into the discussion as it is simpler, but
we must insure that it is not subject to differing interpretations. In our approach the
Estimated Growth Tables for each statistical area have already calculated the existing
floor areas and permitted growth for their statistical area. As these numbers are
documented and not subject to interpretation, we suggest their exclusive use to
determining existing and permitted intensities. It would be mandatory to retain the rule in
the Guidelines about 1000 sq. ft. for a hotel room and 15 sq. ft for theater seats (with the
deletion of the word "approximately") as the standard for estimating the Intensity of new
hotels and theaters.
5.) Intensity Criteria (Exhibit E)
Exhibit E needs augmentation to cover situations where the land use under the General
Plan is changed.
For example, the rules for conversion from one non - residential land use to another should
be defined. Also needing definition are the rules for conversions from "Residential' to a
Non - residential Usage or vice versa.
We suggest insert after the end of the first paragraph "However, if the type of residential
or non - residential land use is changed, the allowed entitlement is zero square feet and
zero peak hour trips, notwithstanding what uses are permitted for the previous land use
designation."
6.) Allowed Uses (Exhibit B)
"Allowed uses" and "proposed uses" are contrasting terms that should be defined
together to make clear the difference of meaning. This could be done under a definition
of "use ":
- - "Use" shall mean the use permitted for property or a geographical area by the General
Plan. Use may be a precise land use or a residential use category or a non - residential use
category. "Allowed use' is that permitted BEFORE a proposed amendment of the
General Plan. "Proposed use" is that which will be permitted AFTER (if) a proposed
amendment takes effect.
7.) Non - residential use category (Exhibit D)
It seems confusing to define "non- residential' when "residential' is clearly defined
- - There is also a technical problem: "Limited care' and "group" are taken out of "non-
residential' by Exhibit D, but are excluded from "residential' by its definition. Where do
they go? We believe they should be classified as commercial.
8.) PROCEDURES (Exhibit F)
Exhibit F is a big improvement. However. "A Staff Reports" and `B City Council
Review" both miss the vital point that the prior amendments to which the 80%
accumulation applies are ONLY those that apply to the same statistical area, and that
were adopted without voter approval in the last ten years (and since December 2000).
Thank you for your consideration of these needed changes to the Guidelines
enlight
hili� sp
Spokesperson
Greenlight Steering Committee
Douglas Carstens
John Buttolph