HomeMy WebLinkAbout2023-73 - Finding Amendments to the Noise and Land Use Elements of the General Plan, Title 20 (Planning and Zoning) of the Newport Beach Municipal Code, Newport Place Planned Community Development Plan (PC11) and Newport Airport Village Planned CommunityRESOLUTION NO. 2023-73
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, FINDING
AMENDMENTS TO THE NOISE AND LAND USE
ELEMENTS OF THE GENERAL PLAN, TITLE 20
(PLANNING AND ZONING) OF THE NEWPORT BEACH
MUNICIPAL CODE, NEWPORT PLACE PLANNED
COMMUNITY DEVELOPMENT PLAN (PC-11) AND
NEWPORT AIRPORT VILLAGE PLANNED COMMUNITY
DEVELOPMENT PLAN (PC-60) RELATED TO NOISE IN
THE AIRPORT AREA NECESSARY TO IMPLEMENT THE
6th CYCLE HOUSING ELEMENT ARE CONSISTENT
WITH THE PURPOSES OF THE STATE AERONAUTICS
ACT AND OVERRIDING THE ORANGE COUNTY
AIRPORT LAND USE COMMISSION'S DETERMINATION
THAT THE AMENDMENTS ARE INCONSISTENT WITH
THE 2008 JOHN WAYNE AIRPORT ENVIRONS LAND
USE PLAN (PA2022-0201)
WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the
City Council with the authority to make and enforce all laws, rules, and regulations with
respect to municipal affairs subject only to the restrictions and limitations contained in the
Charter and the State Constitution, and the power to exercise, or act pursuant to any and
all rights, powers, and privileges, or procedures granted or prescribed by any law of the
State of California;
WHEREAS, in January 2019, the City Council initiated a comprehensive update
of the Newport Beach General Plan, however, due to the Regional Housing Needs
Assessment ("RHNA") allocation of 4,845 new housing units to plan for the 2021-2029
housing period, the City Council directed City staff to focus on the Housing Element, Land
Use Element, and Circulation Element;
WHEREAS, the City Council adopted the 6t" Cycle Housing Element covering the
period 2021-2029 planning period ("6th Cycle Housing Element") on September 13, 2022,
and it was certified by the State Department of Housing and Community Development on
October 5, 2022;
WHEREAS, the 6th Cycle Housing Element including Appendix B has been
subject to extensive public participation in accordance with Government Code Section
65351 including thirteen community workshops, fourteen Housing Element Update
Advisory Committee ("HEUAC") meetings, review of the Housing Element by the
Planning Commission, and six duly noticed City Council study sessions;
Resolution No. 2023-73
Page 2 of 15
WHEREAS, additionally, the HEUAC formed five different subcommittees to
thoroughly review and identify all feasible sites for potential redevelopment as residential
in the future and those sites are captured in Appendix B (Adequate Sites Analysis), which
demonstrates the City's capacity to meet the RHNA allocation;
WHEREAS, the 6th Cycle Housing Element identifies five focus areas where
future housing opportunities will be created through the adoption of housing opportunity
overlays or other rezone strategies to establish the ability to develop additional housing
to meet the RHNA;
WHEREAS, the increase in units above the minimum RHNA allocation is in
response to the unusually high percentage of below market rate units the RHNA
mandates coupled with the significant challenges to planning, financing, and constructing
workforce housing with higher -than -average land costs;
WHEREAS, the sites within the Airport Area Environs identified in Appendix B,
could generate approximately 25 percent (2,577 additional housing units) of the City's 6th
Cycle Housing Element capacity;
WHEREAS, the entire Airport Area Environs is proximate to John Wayne Airport
and subject to the John Wayne Airport Environs Land Use Plan ("AELUP");
WHEREAS, forty-eight housing sites identified in the focus area are within or
bisected by the 65 weighted decibel ("dBA") community noise equivalent level ("CNEL")
noise contour identified in the AELUP;
WHEREAS, the following amendments to the Noise Element and Land Use
Element of the General Plan, Title 20 (Planning and Zoning) of the Newport Beach
Municipal Code ("NBMC"), Newport Place Planned Community Development Plan (PC-
11), and Newport Airport Village Planned Community Development Plan (PC-60) are
necessary to allow residential use, including mixed -use residential, on housing
opportunity sites that are wholly or partially located outside the 65 dBA:
Land Use Element:
• Policy LU6.15.3 (Airport Compatibility),
• Figure LU11 — Statistical Areas J6, L4,
• Figure LU22 —Airport, and
• Figure LU23 -Airport Area Residential Villages Illustrative Concept Diagram
(removal of 65 CNEL noise contour line);
Resolution No. 2023-73
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Noise Element:
• Policy N 1.2 (Noise Exposure Verification for New Development),
• Policy N1.5.A (Airport Area Infill Amendments (new policy),
• Policy N 2.2 (Design of Sensitive Land Uses),
• Policy N 3.2 (Residential Development),
• Figure N4 - Future Noise Contours, and
• Figure N5 — Future Noise Contours;
Title 20 (Planning and Zoning) of the NBMC:
• Section 20.30.080(F) (Noise -Airport Environs Land Use Plan); and
Planned Communities:
• Newport Place Planned Community Development Plan (PC-11) — Part III.
Residential Overlay Zone, Section V.D.1 (Airport Noise Compatibility), and
• Newport Airport Village Planned Community Development Plan (PC-
60),Section I.D (Purpose and Objective) & Section II.B.2 (Prohibited Uses)
("Amendments");
WHEREAS, the Amendments change noise compatibility policies and regulations
and do not change the existing underlying land use categories or zoning designations of
any property;
WHEREAS, the Amendments do not add residential unit capacity to the Land Use
Element, and therefore, the General Plan amendments provided herein do not require a
vote of the electorate pursuant to Charter Section 423;
WHEREAS, a public hearing was held by the Planning Commission on August 3,
2023, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach. A
notice of time, place and purpose of the public hearing was given in accordance with
Government Code Section 54950 et seq. ("Ralph M. Brown Act") and Chapter 20.62
(Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and
considered by, the Planning Commission at this public hearing;
WHEREAS, at the conclusion of the hearing, the Planning Commission adopted
Resolution No. PC2022-015, unanimously (4 ayes and 3 recusals), recommending the
City Council approve the Amendments;
WHEREAS, Section 21676(b) of the California Public Utilities Code ("CPUC")
required the City to refer the Amendments to the Orange County Airport Land Use
Commission ("ALUC") for a determination that the Amendments are consistent with the
Airport Environs Land Use Plan ("AELUP") for John Wayne Airport;
Resolution No. 2023-73
Page 4 of 15
WHEREAS, on August 17, 2023, ALUC determined the Amendments were
inconsistent with the following provisions of the AELUP:
a. Section 2.1.1 (Aircraft Noise), which provides that the "aircraft noise emanating
from airports may be incompatible with the general welfare of the inhabitants
within the vicinity of an airport";
b. Section 2.1.2 (Safety Compatibility Zones), which provides "the purpose of
these zones is to support the continued use and operation of an airport by
establishing compatibility and safety standards to promote air navigational
safety and to reduce potential safety hazards for persons living, working or
recreating near JWA";
c. Section 2.1.4 (Air Transportation), which provides that the Commission is
charged by Section 21674 of the PUC "to coordinate planning at the state,
regional and local levels so as to provide for the orderly development of air
transportation, while at the same time protecting the public health, safety and
welfare"; and
d. Section 3.2.1(1) (General Policy), which provides that "[w]ithin the boundaries
of the AELUP, any land use may be found to be Inconsistent with the AELUP
which ... [p]laces people so that they are affected adversely by aircraft noise";
WHEREAS, pursuant to Sections 21670 and 21676 of CPUC, the City Council
may, after a public hearing, propose to overrule ALUC with a two-thirds vote, if it makes
specific findings that the Amendments are consistent with the purpose of Section 21670
of the CPUC that protect the public health, safety, and welfare by ensuring the orderly
expansion of airports and the adoption of land use measures that minimize the public's
exposure to excessive noise and safety hazards within areas around public airports to the
extent that these areas are not already devoted to incompatible uses,
WHEREAS, a public hearing was held by the City Council on September 12,
2023, in the City Council Chambers, 100 Civic Center Drive, Newport Beach, California.
A notice of time, place, and purpose of the hearing was given in accordance with CPUC
Section 21676(b) and the Ralph M. Brown Act. Evidence, both written and oral, was
presented to, and considered by, the City Council at this hearing;
WHEREAS, at the conclusion of the hearing, the City Council adopted Resolution
No. 2023-52 (5 ayes, 1 recused, 1 absent), to notify ALUC and the State Department of
Transportation, Aeronautics Program ("Aeronautics Program") of the City's intent to
override ALUC's inconsistency finding;
Resolution No. 2023-73
Page 5 of 15
WHEREAS, notice of the City's intent to override the ALUC inconsistency
determination, along with Resolution No. 2023-52 was sent via certified mail and emailed
to ALUC and Aeronautics Program on September 13, 2023;
WHEREAS, the City received timely comments in response to the notice of the
City's intent to override the ALUC inconsistency determination from John Wayne Airport,
ALUC, and the Aeronautics Program in accordance with CPUC Section 21676 which are
attached hereto as Exhibits "B," "C," and "D," respectively, and incorporated herein by
reference; and
WHEREAS, a public hearing was held by the City Council on November 14, 2023,
in the City Council Chambers located at 100 Civic Center Drive, Newport Beach,
California. A notice of time, place, and purpose of the hearing was given in accordance
with the Ralph M. Brown Act, Chapter 20.62 (Public Hearings) of the NBMC, and CPUC
Section 21676(b). Evidence both written and oral, was presented to, and considered by,
the City Council at this hearing.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows:
Section 1: The City Council finds the Amendments are consistent with the
purposes of Section 21670 of the CPUC and the AELUP of protecting the public health,
safety, and welfare by ensuring the orderly expansion of airports and the adoption of land
use measures that minimize the public's exposure to excessive noise and safety hazards
within areas around public airports to the extent that these areas are not already devoted
to incompatible uses and hereby overrides ALUC's determination that the Amendments
are inconsistent with the AELUP.
Findings and Facts in Support of Findings:
A. The Amendments are consistent with the noise standards of the AELUP.
The AELUP guides development proposals to provide for the orderly development
of John Wayne Airport and the surrounding area through implementation of the
standards in Section 2 (Planning Guidelines) and Section 3 (Land Use Policies).
Implementation of these standards are intended to protect the public from the
adverse effects of aircraft noise, ensure that people and facilities are not
concentrated in areas susceptible to aircraft accidents, and ensure that no
structures or activities adversely affect navigable airspace.
Resolution No. 2023-73
Page 6 of 15
Section 2.1.1 of the AELUP sets forth the CNEL standards. A total of 62 new
housing opportunity sites are identified in the Airport Area. Of those sites, 48 are
located wholly or partially outside the updated 65 dBA CNEL contour boundary.
Only 14 new housing opportunity sites are located wholly within the updated 65
dBA CNEL contour boundary. As proposed, residential development would be
limited to parcels or sites wholly or partially outside the updated 65 dBA CNEL
noise contour, unless and until the City determines, based on substantial evidence,
that the sites wholly within such contour area are needed for the City to satisfy its
6th Cycle RHNA mandate.
Sections 3.2.3 and 3.2.4 of the AELUP define the noise exposure in the 60 dBA to
65 dBA CNEL noise contour (Noise Impact Zone 2) as "Moderate Noise Impact"
and in the 65 dBA to 70 dBA CNEL noise contour (Noise Impact Zone 1) as "High
Impact." Section 3, Table 1 (Limitations on Land Use Due to Noise) of the AELUP
identifies residential uses as "conditionally consistent" for the 60 dBA to 65 dBA
CNEL noise contour and "normally inconsistent" for the 65 dBA to 70 dBA CNEL
noise contour. However, residential uses are not outright prohibited. Instead,
Section 3.2.3 of the AELUP requires the residential uses be developed with
advanced insulation systems to bring the sound attenuation to no more than 45 dB
inside. In addition, residential uses within the 65 dBA CNEL noise contour area are
required to be "indoor -oriented" to preclude noise impingement on outdoor living
areas.
The existing CNEL noise contours adopted in the 2006 Noise Element were based
on the 1985 AELUP Master Plan, however, Noise Element Figures N4 and N5,
are outdated and in need of updating. In 2014, the County of Orange
prepared a Draft EIR in connection with the 2014 John Wayne Airport
Settlement Agreement Amendment (SCH No. 2001111135). EIR N o . 617
explains why the 2014 dBA CNEL noise contours have reduced in size
compared to the 1985 AELUP Master Plan CNEL noise contours. EIR No.
617 observed that "the Mater Plan noise contours are considerably larger than
existing noise contours due to a quieter fleet of existing commercial aircraft and a
dramatic reduction in the number of generation aviation operations ...."' The 2014
CNEL contours were also based on a newly adopted, "state-of-the-art" noise
modeling program .2 EIR No. 617 found that the 65 dBA CNEL contour area was
114% smaller than the analog from the 1985 Master Plan.
EIR No. 617 at 4.6-34.
2 Id. at 4.6-31. Airport noise contours were generated using the INM Version 7.0d. The latest version, INM
Version 7.0d, was released for use in May 2013 and is the state-of-the-art in airport noise modeling.
Resolution No. 2023-73
Page 7 of 15
As the EIR explained, "one of the most important factors in generating accurate
noise contours is the collection of accurate operational data." Airport noise
contours generated in this noise study using the INM Version 7.Od which was
released for use in May 2013, and is the state -of -art in airport noise modeling.
Although the 2014 Settlement Agreement Amendment and associated EIR were
predicated on updated noise contours, the AELUP - which ALUC bases its land
use compatibility or incompatibility determinations on - still relies on the outdated
noise contours from the 1985 JWA Master Plan.
The purpose of the Amendments is to eliminate conflicts between the certified 6th
Cycle Housing Element and the City's General Plan Land Use Element and Noise
Element and zoning codes, which prohibit residential development within the
outdated 1985 65 dBA CNEL noise contour area, and to adopt more updated
CNEL noise contour areas that are based on updated noise modeling data, airport
operations and advances in aviation technology that result in decreased noise
levels. As a result, these policies and regulations must be updated to eliminate
conflicting policy and regulatory restrictions to provide consistency with the 6th
Cycle Housing Element. No development would be directly authorized by the
Amendments. By providing uniform and concise conditions of approval identified
in the proposed amendments to Title 20 (Planning and Zoning) of NBMC, the City
has taken actions to address potential environmental constraints in the Airport
Area and ensure continued feasibility of sites, particularly for lower -income RHNA.
With respect to the Federal Aviation Administration ("FAA") and the California
Department of Transportation, Division of Aeronautics ("Caltrans") comments
letters, concerns were raised that FAA and Caltrans have adopted noise and land
use compatibility standards which "generally establish a maximum exterior noise
level of 65 dB CNEL for private outdoor living areas and an interior noise level of
45 dB CNEL for residential and other sensitive land uses." The comment requests
that the Housing Element Noise Update be revised to reflect only non-residential
uses within the 65 dB CNEL noise contour. Although FAA and Caltrans have
developed land use compatibility guidelines for residential and nonresidential uses
near airports, the City maintains that the Housing Element Noise Update is
inconsistent with those standards.
First, the FAA promulgated regulations codified at Title 14, Part 150 of the Code
of Federal Regulations ("CFR") to implement the Aviation Safety and Noise
Abatement Act of 1979 ("ASNA"), The "Part 150" regulations consist of
compatibility guidelines for aviation noise exposure. These guidelines prescribe
standards for land use compatibility for different uses over a range of noise
exposure levels, but do not regulate land use decisions.
Resolution No. 2023-73
Page 8 of 15
The Part 150 regulations specify that "all land uses are considered to be
compatible with noise levels less than 65 dB [day -night average sound level
(DNL)]." However, the Part 150 regulations state that the compatibility standards:
"...do not constitute a Federal determination that any use of land
covered by the [noise compatibility] program is acceptable or
unacceptable under federal, state, or local law. The responsibility for
determining the acceptable and permissible land uses and the
relationship between specific properties and specific noise contours
rests with the local authorities. FAA determinations under Part 150
are not intended to substitute federally determined land uses for
those determined to be appropriate by local authorities in response
to locally determined needs and values in achieving noise
compatible land uses."
The Part 150 regulations also acknowledge that "[1]ocal needs or values may
dictate further delineation based on local requirements or determinations." (14
CFR 150.101). Therefore, the Housing Element Noise Update and its
recommendation to allow residential development on sites that are wholly or
partially outside the 2014 65 dBA CNEL do not stand in direct conflict with the FAA
Part 150 regulations.
On the state level, Cal. Code Regs. tit. 21 § 5000 et seq. provides noise standards
governing the operation of aircraft and aircraft engines for all airports operating
under a valid permit issued by the Department of Transportation. Section 5006
provides that "[t]he level of noise acceptable to a reasonable person residing in the
vicinity of an airport is established as a CNEL value of 65 dB for purposes of these
regulations. This criterion level has been chosen for reasonable persons residing
in urban residential areas where houses are of typical California construction and
may have windows partially open." The California compatibility criterion (i.e., 65
dBA CNEL) is only mandated for a few airports (including JWA) that are designated
as "noise problem airports." For these airports, four types of land uses are defined
as incompatible outside the 65 dBA CNEL, including residences of all types, public
and private schools, and other institutional uses. However, these uses are not
incompatible if certain sound attenuation methods are incorporated. For example,
high rise apartment or condominium "having an interior CNEL of 45 dB or less in
all habitable rooms due to aircraft noise, and an air circulation or air conditioning
system as appropriate ..." are not incompatible. 21 CCR 5014(a)(3).
Resolution No. 2023-73
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The 6th Cycle Housing Element Noise Update requires precisely this as a local
regulatory control measure. The General Plan Amendments proposed pursuant to
Resolution No. 2023- provide this with a number of examples delineated below:
("Residential uses can be allowed in the Airport Area on parcels that are wholly or
partially outside the 65 dBA CNEL contour as denoted in Figures N4 and N5 of the
Noise Element. Residential uses may be approved in these areas provided interior
living areas are protected from excessive noise by appropriate construction
techniques that reduce the interior noise to 45 dBA CNEL, consistent with state
law. (See Cal. Code Regs., tit. 21, § 5014, subd. (a)(1)-(4)")); ("The 65 dBA CNEL
contour area describes the area for which new noise -sensitive developments,
including residential uses, will be conditionally permitted only if appropriate
measures are included such that the standards contained in this Noise Element
are achieved"); ("Furthermore, residential units should be sufficiently indoor -
oriented, consistent with Title 21 of the California Code of Regulations, so as to
reduce noise impingement on outdoor living areas."); (Applicants for proposed
residential or mixed -use projects located in areas projected to be exposed to 65-
70 dBA CNEL or greater must conduct a noise study to provide evidence that the
depicted noise contours do not adequately account for local noise exposure
circumstances due to such factors as, topography, variation in traffic speeds, and
other applicable conditions. These findings shall be used to determine the level of
exterior or interior noise, attenuation needed to attain an acceptable noise
exposure level and the feasibility of such measures when other planning
considerations are considered, consistent with Title 21 of the California Code of
Regulations.") Thus, the Housing Element Noise Update does not conflict with the
state prescribed standards for noise and land use compatibility. Last, the
Amendments would follow State mandates and local agency regulations by
ensuring appropriate noise considerations are made and that mitigation measures
are included in the design. Residential development and the residential portion of
mixed -use projects would be restricted from areas exposed to exterior noise levels
of 70 dBA CNEL and higher. Compliance with these proposed policies and
regulations will ensure that future development within the JWA Airport Planning
Area will follow the noise standards of the AELUP.
B. The proposed Amendments are consistent with the safety standards of the
AELUP.
Section 2.1.2 (Safety Compatibility Zones) of the AELUP sets forth zones depicting
which land uses are acceptable in various portions of JWA environs. Most of the
housing opportunity sites, with the exception of portions of three properties, are all
within Safety Zone 6. Allowed uses in Safety Zone 6 include residential and most
nonresidential uses, excepting outdoor stadiums and similar uses with very high
Resolution No. 2023-73
Page 10 of 15
intensities. Uses that should be avoided include children's schools, large day-care
centers, hospitals, and nursing homes. Risk factors associated with Safety Zone
6 generally include a low likelihood of accident occurrence. The Newport Beach
Golf Course and the Young Men's Christian Association properties are included as
housing opportunity sites in the 6th Cycle Housing Element. Portions of those
properties are within Safety Zone 4 with the remaining portions lying in Safety Zone
6. Safety Zone 4 limits residential uses to very low density (if not deemed
unacceptable because of noise) and advises to avoid nonresidential uses having
moderate or higher usage intensities.
The City's General Plan Safety Element Policy S 8.6 demonstrates that the City
acknowledges the importance of the JWA Safety Zones:
"S 8.6 John Wayne Airport Traffic Pattern Zone - Use the most currently available
John Wayne Airport (JWA) Airport Environs Land Use Plan (AELUP) as a planning
resource for evaluation of land use compatibility and land use intensity in areas
affected by JWA operations. In particular, future land use decisions within the
existing JWA Clear Zone/Runway Protection Zone (Figure S5) should be
evaluated to minimize the risk to life and property associated with aircraft
operations."
In accordance with Policy S 8.6, the Amendments do not include any housing
opportunity sites in the JWA Clear Zone/Runway Protection Zone. Compliance
with these policies and regulations will ensure that future development within the
JWA Airport Planning Area will follow the safety standards of the AELUP.
Safety concerns have been raised due to the location of proposed residential sites
within the AELUP's Safety Zones, particularly Zone 4 (Outer Approach/Departure
Zone) and Zone 6 (Traffic Pattern Zone), therefore, it is recommended that the City
recognize safety concerns in the context of the 6th Cycle Housing Element Noise
Update and make adjustments and modifications to eliminate, where possible,
such safety concerns. The "Basic Compatibility Qualities" listed for Zone 4 (Outer
Approach/Departure Zone) state "[i]n undeveloped areas, limit residential uses to
very low densities (if not deemed unacceptable because of noise); if alternative
uses are impractical, allow higher densities as infill in urban areas." Similarly, the
"Basic Compatibility Qualities" for Zone 6 "allow residential uses." The AELUP
defines "allow" to mean "use is acceptable." As explained in the Staff Report, a
total of 62 new housing opportunity sites are identified in the Airport Area according
to the Sixth Cycle Housing Element. Of those sites, 48 are located wholly or
partially outside the 65 dBA CNEL contour boundary as identified in 2014
Settlement Agreement Amendment EIR. Fourteen housing opportunity sites are
Resolution No. 2023-73
Page 11 of 15
located wholly within the updated 65 dBA CNEL contour boundary. Given the
urban and developed state of the Airport Area, future residential development on
sites located wholly or partially outside the 2014 65 dBA CNEL contour would
constitute urban infill development. The 14 housing opportunity sites located wholly
within the 2014 65 dBA CNEL are explicitly recognized as suitable for non-
residential uses under the revised policies in the Housing Element Noise Update.
Therefore, the Housing Element Noise Update does not create an inherent conflict
between the land use compatibility criteria for Zones 4 and 6 and the location of
certain housing opportunity sites in the City's Sixth Cycle Housing Element.
Comments received by the City suggest that a number of properties in the Housing
Element Noise Update are located in the Approach Surface, Transitional Surface
and Horizontal Surface of the Federal Aviation Regulation (FAR) Part 77, however,
no height increases to any particular property or development proposal are
proposed in the Housing Element Noise Update. The City will ensure that all
appropriate consideration is given to this topic in future planning decisions
concerning building heights in the Airport Area.
C. The Amendments are consistent with the purpose and intent of the AELUP and
will not result in incompatible land uses adjacent to JWA.
The standards and policies set forth in AELUP Sections 2 and 3 were adopted to
prevent the creation of new noise and safety problems. California Government
Code Section 65302 sets forth the requirements for Noise Elements in each
jurisdiction's General Plan. Concerns have been raised that the City revise its
Housing Element Noise Update to, at a minimum, locate any new residential
development outside the 65 dB CNEL noise contour and, preferably, locate any
new residential development outside the 60 dB CNEL noise contour.
Government Code Section 65302(f) mandates that each local agency's general
plan include a noise element that identifies and appraises noise problems in the
community. The noise element shall analyze and quantify, to the extent
practicable, as determined by the legislative body, current and projected noise
levels from airport and airport operations. (Gov. Code Sec. 65302(f)(1)(D). To that
end, a noise element must include:
"Noise contours ... for all of these sources and stated in terms of
community noise equivalent level (CNEL) or day -night average
sound level (Ldn). The noise contours shall be prepared on the basis
of noise monitoring or following generally accepted noise modeling
techniques for the various sources ..."
Resolution No. 2023-73
Page 12 of 15
The City, like all local agencies, is required to include noise contours based on
"noise monitoring" or generally accepted noise modeling techniques. The CNEL
contours from the 2014 Settlement Agreement Amendment EIR No. 617 were
based on a newly adopted, "state-of-the-art" noise modeling program. It is
reasonable to conclude that the updated noise modeling data taken in conjunction
with EIR No. 617 are the more optimal choice to satisfy this statutory requirement
than the now -outdated 1985 Master Plan CNEL contours. Accordingly, the City
does not agree with the commenter that the Housing Element Noise Update
conflicts with Government Code Section 65302. Rather, the Housing Element
Noise Update is a necessary step the City must take to update the Noise Element
of the General Plan to be consistent with the statutory requirements for noise
elements and CNEL contours therein.
Furthermore, the Housing Element Noise Update is consistent with the Appendix
D Noise Element Guidelines developed by the Governor's Office of Planning &
Research ("OPR") (the "Noise Element Guidelines"). The Noise Element
Guidelines were developed to aid local agencies adopt (and update) statutorily
required noise elements. Among other things, the Noise Element Guidelines
recommend that "Noise contours for larger airport facilities and major industrial
sites are sufficiently complex that they must be developed via sophisticated
computer techniques available through recognized acoustical consulting firms.
(Noise Element Guidelines at 371). The Noise Element Guidelines also
recommend an "assessment of the present-day noise environment ..." (id.).
In addition to this recommendation, the Noise Element Guidelines include
recommended exterior and interior noise level standards for local jurisdictions to
identify and prevent the creation of incompatible land uses. The Noise Element
Guidelines contain a land use compatibility table that describes the compatibility
of various land uses with a range of environmental noise levels in terms of the
CNEL. As noted in Figure 2 below, Residential -Multifamily Uses are "conditionally
acceptable" between 60 and 70 dBA CNELs.
Resolution No. 2023-73
Page 13 of 15
Adopt and apply a community noise ordinance for resolution of noise complaints.
FIGURE 2
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As set forth above, any development on the proposed housing opportunity sites
will comply with the noise criteria and safety standards established in Sections 2
and 3, and consistent with policies contained in the Amendments to Land Use and
Noise Elements and comply with standard conditions proposed for Title 20 of the
NBMC and the Newport Place and Newport Airport Village planned communities.
Parcels or sites bisected by the updated 65 dBA CNEL noise contour could support
future housing; whereas parcels or sites located wholly within the updated 65 dBA
CNEL noise contour could support housing, if deemed necessary to satisfy the
RHNA mandate. Lastly, compliance with the AELUP and City standards will also
be evaluated and demonstrated at the time development projects are proposed in
the future. Future development projects will be subject to compliance with FAR
Part 77 surfaces for JWA. Existing regulations and the proposed Amendments
require projects to be submitted to the FAA for a review and clearance.
D. The Amendments do not result in the City to be out -of -compliance with the 2006
Cooperative Agreement.
The City's ability to override ALUC is embodied in Section 21676 and is wholly
unrelated to any alleged compliance or non-compliance with the Cooperative
Agreement. That said, according to the 2006 Cooperative Agreement, the City and
the County of Orange agreed upon certain principles. The City agreed not to annex
Resolution No. 2023-73
Page 14 of 15
County property or the JWA itself while the County agreed not to pursue future
physical expansion of the airport. The City also agreed to not amend the Santa
Ana Heights Specific Plan without consent of the County. The Amendments do not
necessitate any changes the Santa Ana Heights Specific Plan. Furthermore, the
City agreed it would adopt and maintain General Plan policies and implement
regulations consistent with the AELUP.
Section 2: The recitals provided in this resolution are true and correct and are
incorporated into the operative part of this resolution.
Section 3: If any section, subsection, sentence, clause or phrase of this
resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this resolution. The City
Council hereby declares that it would have passed this resolution, and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
Section 4: The City Council finds the action to override the ALUC's August
17, 2023, determination and the approval of the Amendments exempt from the
California Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines Section
15183 because they do not change the underlying land use or zoning designations of
any specific parcels, including parcels within the Airport Area or within the updated noise
contours based upon the findings set forth in Exhibit "E," which is attached hereto and
incorporated herein by reference.
Resolution No. 2023-73
Page 15 of 15
Section 5: This resolution shall take effect immediately upon its adoption by the
City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 14t" day of November 21
ATTEST:
Leiflanii I" 7BroCity Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
/0-�— C.
aron C. Harp
City Attorney
Attachments: Exhibit A — Airport Land Use Commission Inconsistency
Determination dated August 23, 2023
Exhibit B — Comment Letter from John Waye Airport dated
October 9, 2023
Exhibit C — Comment Letter from Airport Land Use Commission
dated October 11, 2023
Exhibit D — Comment Letter from State Department of
Transportation Aeronautics Program dated October 13,
2023
Exhibit E — CEQA Findings of Consistency
EXHIBIT "A"
Airport Land Use Commission Inconsistency
Determination dated August 23, 2023
/ AIRPORT LAND USE COMMISSION
ORANGE COUNTY
FOR ORANGE COUNTY
3160 Airway Avenue • Costa Mesa, California 92626 - 949.252.5170 fax: 949.252.6012
RECEIVED BY
COMMUNITY
DEVELOPMENT
August 23, 2023
AUG 2 8 2023
Rosalinh Ung, Principal Planner
City ofNe,,vport Beach CITY OF
100 Civic Center Drive NEWPORT BEACH
Newport Beach. CA 92660
Subject: ALUC Determination for Housing Element Implementatioil'Noise-Related
Amendments including Amendments to the Land Use Element, Noise Element, Zoning Code.
Newport Airport Village Planned Community and Newport Place Planned ConulIuinity
Dear Ms. Ung:
During the public meeting held on August 17, 2023, the Airport Land Use Commission (AL.UC)
for orange County considered the subject item. The matter was duly discussed, and with a 4-0
vote. the Commission found the Housing Element Implementation/Noise-Related Amendments
including Amendments to the Land Use Element. Noise Element, "Zoning Code, Newport Airport
Village Planned Community and Newport Place Planned Community to be Inconsistent with the
.,I ig)ort Environs Land Use Plan for- John 11'a3me AiTurl (AELUP for JJVA) Per:
1. Section 2.1.1 Aircraft Noise that the "aircraft noise emanating from airports may be
incompatible with general welfare of the inhabitants within the vicinity of an airport."
2. Section 2.1.2 Safety Compatibility Zones in which "the purpose of these zones is to
support the continued use and operation of an airport by establishing compatibility and
safety standards to promote air navigational safety and to reduce potential safety hazards
for persons living, working or recreating near JWA."
Section 2.1.4, and PUC Section 21674 which state that the Commission is charged by
PUC Section 21674(a) "to assist local agencies in ensuring compatible land uses in the
vicinity of ...existing airports to the extent that the land in the vicinity of those airports is
not already devoted to incompatible uses," and PUC Section 21674(b) "to coordinate
planning at the state. regionat and local levels so as to provide for the orderly
development of air transportation, while at the same time protecting the public health.
safety and welfare."
4. 3.2.1 General Policy of the,AELUP which states that the General Land Use policy of the
Airport Land Use Commission for Orange County shall be "Within the boundaries of the
AELUP, any land use may be found to be Inconsistent \ ith the AELUP which... places
people so that they are affected adversely by aircraft noise...'"
Please contact Julie Fitch at 'tits ch(dt,,ocair.coin or at (949) 252-5170 if yoU would like additionaI
information or have questions regarding this proceeding.
Sincerely,
Lea U. Choum
Executive Officer
cc: ALUC
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EXHIBIT "B"
Comment Letter from John Waye Airport
dated October 9, 2023
JOHN WAYNE
AIRPORT
ORANGE COUNTY
October 9, 2023
Rosalinh Ung, Principal Planner
City of Newport Beach
Community Development Department
100 Civic Center Drive
Newport Beach, California 92660
rung&newportbeachca.gov
RE: Newport Beach Housing Element Implementation Noise -Related Amendments
Dear Ms. Ung:
This letter provides comments on behalf of the County of Orange (County), acting in its capacity
as the owner and operator of John Wayne Airport, Orange County (SNA) (JWA or Airport), to the
City of Newport Beach's (City) proposed noise -related amendments to its Land Use Element,
Noise Element, Zoning Code, Newport Place Planned Community, and Newport Airport Village
Planned Community (collectively, Housing Element Noise Update or Update). We understand
that this Update is intended to accommodate the City's proposed residential sites located within
the Airport's 60 and 65 decibel (dB) Community Noise Equivalent Level (CNEL) noise contours
that were included in the Housing Element Update that was approved by the City in September
2022.
The Airport has a number of serious concerns relating to this proposed Housing Element Noise
Update including, but not limited to, land use, noise, safety and airspace compatibility issues,
compliance with the 2006 Cooperative Agreement between the County and the City, and
compliance with the California Environmental Quality Act (CEQA) (Pub. Res. Code § 21000 et
seq.) and the State CEQA Guidelines (Guidelines) (Cal. Code Regs. Tit. 14, § 15000 of seq.).
Our concerns are addressed in detail below.
Background
As you know, the City recently submitted the Housing Element Noise Update to the County's
Airport Land Use Commission (ALUC) for a consistency determination. In August 2023, the ALUC
found the City's Update to be inconsistent with the Airport Environs Land Use Plan (AELUP) for
JWA due to noise, safety and land use incompatibility issues. The City has indicated that it plans
to overrule ALUC's most recent inconsistency determination and adopt the Housing Element
Noise Update. Our understanding is that the ALUC will submit a separate comment letter relating
to the AELUP overrule and the sufficiency of the City's findings for that overrule. Therefore, this
comment letter will not address those important ALUC and findings issues. Rather, our comment
letter focuses on the important land use, noise, safety and airspace compatibility issues relating
to the City's Housing Element Noise Update, as well as issues relating to the 2006 Cooperative
Agreement and the City's compliance with CEQA and the CEQA Guidelines.
Charlene V. Reynolds (949) 252-5171 3160 Airway Avenue
Airport Director (949) 252-5178 FAX Costa Mesa, CA
www.ocair.com 92626-4608
Rosalinh Ung, Principal Planner
City of Newport Beach
October 9, 2023
Page 2
Land Use, Noise, Overflight, and Safety Compatibility Issues
The City's proposed Housing Element Noise Update identifies approximately twenty-eight (28)
new sites for potential residential development within the 65 dB CNEL noise contour and twenty-
three (23) new sites for potential residential development within the 60 dB CNEL noise contour.
In addition, the 2021 Housing Element Update removed a policy that was included in previous
Housing Elements prohibiting residential uses within the 65 dB CNEL noise contour, and the City
is now proposing to revise or remove similar policies from the Housing Element Noise Update_
Our understanding is that the City's proposal identifies sites that can achieve the City's assigned
2021 Regional Housing Needs Assessment (RHNA) for the 2021-2029 planning period. However,
many of these sites are now located within the 65 dB CNEL noise contour, which was formerly
prohibited by the City's own policies.
Noise is one of the most basic land use compatibility concerns. Federal and state statutes and
regulations establish the basis for ensuring land use compatibility in areas around airports.
Specifically, both the Federal Aviation Administration (FAA) and the California Department of
Transportation, Division of Aeronautics (Caltrans) have adopted noise and land use compatibility
standards for residential land uses, schools, and other noise sensitive uses. (See, e.g., 49 U.S.C.
§ 47502, Pub. Util. Code § 21669, Cal. Code Regs. § 5000 et seq.), These standards generally
establish a maximum exterior noise level of 65 dB CNEL for private outdoor living areas and an
interior noise level of 45 dB CNEL for residential and other sensitive land uses. As indicated in
Section 5006 of the California Code of Regulations (Title 21, Division 2.5, Chapter 6):
"The level of noise acceptable to a reasonable person residing in the vicinity of an
airport is established as a community noise equivalent level (CNEL) value of 65
dB for purposes of these regulations. This criterion level has been chosen for
reasonable persons residing in urban residential areas where houses are of typical
California construction and may have windows partially open. It has been selected
with reference to speech, sleep, and community reaction."
Because the City's proposed Housing Element Noise Update could result in new residential
development being exposed to excessive noise levels outside these standards, we request that
the Housing Element Noise Update be revised to reflect only non-residential uses within the 65
dB CNEL noise contour to ensure compliance with these important state and federal noise
standards.
In addition to the FAA and Caltrans standards for noise compatibility, general plan guidelines
relating to noise compatibility are provided in the California Government Code. (See, e.g., Cal,
Gov. Code §65302.) These code provisions require noise contours to be used as a guide for
establishing a pattern of land uses that minimizes the exposure of community residents to
excessive noise. The Housing Element Noise Update, which potentially would expose residents
to excessive noise impacts, is not consistent with these general plan guidelines. We therefore,
also request that the City revise its Housing Element Noise Update to, at a minimum, locate any
new residential development outside the 65 dB CNEL noise contour and, preferably, locate any
new residential development outside the 60 dB CNEL noise contour in order to minimize the
exposure of community residents to excessive noise.
Adding new residential sites within the 65 dB CNEL noise contour would not only subject future
residents to excessive aircraft noise due to the proximity of the Airport but would also increase
Rosalinh Ung, Principal Planner
City of Newport Beach
October 9, 2023
Page 3
the amount of incompatible land use within the 65 dB CNEL noise contour. If the City does not
revise its Update to eliminate all residential sites within the 60 and 65 dB CNEL noise contours,
specific noise mitigation requirements should be implemented for any future residences located
within these noise contours, including appropriate avigation easement and sound attenuation as
required under Cal. Code Regs. Tit. 21 §5037. These requirements could be accomplished
through an overlay zone in the Housing Element Noise Update that notifies planners processing
projects in the airport environs that avigation easements and appropriate sound attenuation
requirements must be met. This type of overlay zone will minimize the risk to both the City and
County relating to future sound attenuation requirements and/or noise litigation.
The proposed residential sites also include properties that fall beneath the approach and
transitional obstruction imaginary surfaces for JWA. Therefore, potential future residents would
be exposed to significant aircraft overflight annoyance as approaching aircraft fly overhead. In the
past, residential land uses located under aircraft approach corridors have generated a significant
number of noise complaints from affected residents. Therefore, it is important that the City
ensures that appropriate overflight notification requirements be put in place relating to these
potential residential sites. Again, this type of notification requirement can be implemented through
a Housing Element Noise Update overlay zone or through the CEQA process discussed further
below.
There are also safety concerns related to proposed residential sites which are located within the
AELUP Safety Zones for JWA. The comment letter from the ALUC provides more specifics on
this issue, but it is important to note that the proposed residential sites within the Airport environs
have been identified in Safety Zone 6: Traffic Pattern Zone and Safety Zone 4: Outer
Approach/Departure Zone. As provided in the AELUP's Basic Safety Compatibility Qualities Table
(page 9-45), within Safety Zone 4, "[i]n undeveloped areas, limit residential uses to very low
densities (if not deemed unacceptable because of noise); if alternative uses are impractical, allow
higher densities as infill in urban areas." In this instance, locating residential uses within Safety
Zone 4 would place future residents within close proximity to the Airport and locate residential
development directly under a general aviation, low -altitude, primary flight corridor. It is important
that the City recognize these safety issues in the context of the Housing Element Noise Update
and make adjustments and modifications to eliminate, where possible, these safety concerns.
Further, there are numerous flights over the proposed residential sites in the Airport environs, with
a concentration of flights over the primary approach corridor and proposed sites east of the Airport
within Safety Zone 6 and the transitional surface for JWA. The location and number of proposed
new residential sites within Safety Zones 4 and 6, with some directly under the flight path of
commercial and general aviation flights, again suggests that these new residential land uses
would be incompatible with the operations at JWA and subject the future residents to not only
excessive noise but also safety risks.
In addition to the land use, noise, overflight, and safety compatibility issues identified above, many
of the residential sites included in the Housing Element Noise Update are in the Approach
Surface, Transitional Surface, and Horizontal Surface of the Federal Aviation Regulation (FAR)
Part 77 Obstruction Imaginary Surfaces for JWA. (See, e.g., 49 U.S.C. § 44718, 49 U.S.C. §
46301.) Although no height increases are proposed at this time, and with approximate ground
elevations of 46 to 53 feet, the City's existing maximum building heights for the sites would not
penetrate the Obstruction Imaginary Surfaces, the City has indicated that proposals for changes
Rosalinh Ung, Principal Planner
City of Newport Beach
October 9, 2023
Page 4
to the existing height limits may be considered in the future. Therefore, it is important that the City
is aware of this issue and the importance of compliance with the FAR Part 77 surfaces for JWA.
Cooperative Agreement Between the City and County
In addition to the land use, noise, safety, and airspace compatibility issues identified above, if the
City moves forward with approving the Housing Element Noise Update which places new
residential sites within the 65 dB CNEL noise contour, such actions will undermine the goals set
forth in the Cooperative Agreement between the City and County of Orange, dated November 1,
2006. In that Agreement, the City and County agreed to "expand their longstanding efforts to
promote compatibility between operations at John Wayne Airport ... and land uses within and in
proximity to the City."
Furthermore, the City agreed to become a "consistent" agency with respect to residential land
uses within the airport vicinity and to preserve certain longstanding land use plans, such as the
Santa Ana Heights Specific Area Plan (SAHSAP) that were designed to harmonize land uses in
Santa Ana Heights with air carrier operations at JWA. The City agreed to retain this consistent
agency status through the term of the Agreement provided that the AELUP CNEL contour is not
expanded in comparison to that which is in the AELUP as of the effective date. Importantly, the
noise contours that the City proposed to utilize for the ALUC Update consistency determination
are smaller than those provided in the AELUP. In addition, the City agreed not to repeal/modify
the SAHSAP without County consent. The proposed Housing Element Noise Update would
require changes to the City Zoning Code, which in turn requires an amendment to the
SAHSAP. Consistent with the 2006 Cooperative Agreement, the City is required to obtain County
consent prior to any amendments to the SAHSAP.
CEQA Compliance
With respect to CEQA compliance, because the City's Housing Element Noise Update submittal
allows new residential sites within the 65 dB CNEL noise contour, there is a significant land use
and noise impact for purposes of CEQA. In addition, and as discussed in detail above, there are
also significant safety, airspace protection, and related environmental issues that must be
addressed in the CEQA context.
The City has mistakenly indicated that the proposed Housing Element Noise Update is exempt
from CEQA pursuant to Guidelines section 15183. (See City of Newport Beach Planning
Commission Staff Report, dated August 3, 2023, Agenda Item No. 4, Housing Element
Implementation, Noise -Related Amendments (PA2022-0201), pp. 1, 10-11; City of Newport
Beach Resolution No. 2023-52, Section 6.) However, the referenced CEQA provision does not
apply to projects otherwise consistent with a General Plan's development density parameters
where it is "necessary to examine whether there are project -specific significant effects which are
peculiar to the project or its site." (Guidelines, §15183(a).) As described throughout this comment
letter, the proposed Housing Element Noise Update would facilitate the future development of
residential land uses in a geographic area that is subject to potentially significant aviation -related
noise, airspace, overflight and safety environmental concerns. Guidelines section 15183 does not
provide a CEQA compliance pathway that permits the City to abdicate its duty to evaluate,
disclose and mitigate these "peculiar" environmental concerns that are unique to the airport
environs. (Guidelines, §15183(b).)
Rosalinh Ung, Principal Planner
City of Newport Beach
October 9, 2023
Page 5
The City additionally has indicated that the proposed Housing Element Noise Update is not
subject to further environmental review based on the erroneous premise that its impacts were
fully analyzed in Final Environmental Impact Report (FEIR) 617, which was prepared for the
amendments to the 1985 Settlement Agreement entered into by and between the County and the
Orange County Board of Supervisors, the City of Newport Beach, Stop Polluting Our Newport,
and the Airport Working Group of Orange County, Inc., (the Settlement Amendment) (see, Board
of Supervisors Resolution No. 14-084 [September 30, 20141 and Board of Supervisors Resolution
No. 14,088 [September 30, 2014]). (See City of Newport Beach Planning Commission Staff
Report, dated August 3, 2023, Agenda Item No. 4, Housing Element Implementation, Noise -
Related Amendments (PA2022-0201), pp. 1, 10-11; City of Newport Beach Resolution No. 2023-
52, Section 6.) FEIR 617, however, did not analyze the potentially significant environmental
impacts of future residential land uses within the 65 dB CNEL noise contour. This is because, at
the time that FEIR 617 was prepared, the City's policies did not allow residential land uses within
the 65 dB contour and none were proposed. (See, e.g., FEIR 617, Table 4.5-10 [Goals and
Policies Consistency Analysis], City of Newport Beach General Plan Policy 6.15.3: Airport
Compatibility ["Require that ... residential development be located outside of the 65 dBA CNEL
noise contour specified by the 1985 JWA Master Plan."].) Therefore, the City cannot rely on FEIR
617 for CEQA compliance because it does not analyze the potentially significant land use
compatibility, noise, overflight, and safety impacts, among other impacts, of locating future
residential development within the 65 dB CNEL noise contour. (See, e.g., CEQA Guidelines
§§15006(f) and 15153 [permitting a lead agency to reuse a prior EIR for another project only when
it "adequately addresses the proposed project" and where it can be demonstrated that "such
projects are essentially the same in terms of environmental impact"]; see also CEQA Guidelines
§15162 [providing that a subsequent EIR shall be prepared where "substantial changes" to the
project are proposed which trigger the involvement of new significant environmental effects].)
Also, and importantly, CEQA is the vehicle not only for the discussion and analysis of potentially
significant impacts, but also for the imposition of appropriate mitigation, including, but not limited
to, avigation easements and sound attenuation. (See, e.g., Guidelines §15002(a)(1)-(3).) The City
must prepare and certify adequate CEQA analysis, including approval of adequate mitigation for
significant environmental impacts, prior to considering approval and adoption of the Housing
Element Noise Update.
Due to the proposed policy amendments which now would allow residential uses within the 65 dB
CNEL noise contour, CEQA compliance is required prior to approval of the Housing Element
Noise Update. The City cannot wait for a future residential project proposal. CEQA prohibits this
type of deferral and piecemealing of the analysis of impacts. (See, e.g., Guidelines §15004 [CEQA
compliance "should be prepared as early as feasible in the planning process"]; Guidelines §15378
[the "project" is the "whole of an action" and includes activities "directly undertaken by any public
agency including ... the adoption and amendment of local General Plans or elements thereof'],)'
' It is noted that, on June 27, 2023, the City published a Notice of Preparation (NOP) for preparation of a
Program EIR relating to its proposed Housing Implementation Program. In the NOP's "Project Summary,"
the City explains that its Program EIR will "evaluate the potential environmental effects of the
implementing actions associated with the 2021-2029 Housing Element," including the housing sites
identified in the so-called "Airport Area" (see, e.g., Figure 2E therein) and corresponding revisions to the
City's General Plan Land Use Element and Zoning Code. It is unclear how the City's proposed Housing
Implementation Program relates to the City's proposed Housing Element Noise Update that is the subject
of this comment letter. Absent additional explanation, it appears that the City is improperly piecemealing
the CEQA review of the totality of the City's efforts to implement its 2021-2029 Housing Element. (The
Rosalinh Ung, Principal Planner
City of Newport Beach
October 9, 2023
Page 6
Conclusion
In conclusion, the City's proposed Housing Element Noise Update has the potential to increase
incompatible land use within the 65 dB CNEL noise contour, which could result in significant land
use compatibility, noise, safety, and overflight impacts and additional encroachment of
incompatible land uses within the airport environs. As indicated above, the City must comply with
CEQA requirements to adequately analyze these potentially significant environmental impacts
prior to considering approval of this Update. In addition, the City's proposed Housing Element
Noise Update is inconsistent with the 2006 Cooperative Agreement entered into between the City
and the County. Revisions are required to the Update to remove any residential uses within the
65 and 60 dB CNEL noise contours to ensure continued compliance with this important
Agreement,
We continue to appreciate our close relationship with the City and will make ourselves available
to discuss the issues identified in this letter at your convenience. Our hope is that we can continue
to work cooperatively to ensure land use compatibility surrounding the Airport.
Sincerely,
Charlene V. Rey olds
Airport Director
Cc: Frank Kim, County Executive Officer
Lilly Simmering, Deputy County Executive Officer
Leon Page, County Counsel
Nicole Walsh, Senior Assistant County Counsel
referenced NOP for the proposed Housing Implementation Program is available on the City's website at
Notice of Preparation and Scoging Meeting 062723.pdf (newportbeachca.gov).)
EXHIBIT "C"
Comment Letter from Airport
Land Use Commission dated October 11, 2023
DocuSign Envelope ID: OOD406E1-2E9F-4D91-A4A3-55E230ED583F
f AIRPORT LAND USE COMMISSION
ORANGE'COUNTY
FOR ORANGE COUNTY
�i4LliG 3160 Airway Avenue • Costa Mesa, California 92626 - 949.2S2.5170 fax: 949.252.6012
October 11, 2023
Rosalinh Ung
City of Newport Beach
Community Development Department
100 Civic Center Drive
Newport Beach, CA 92660
Subject: Response to Notice of Intent to Overrule the Airport Land Use Commission for
Orange County Determination on Housing Element Implementation
Dear Ms. Ung.
We are in receipt of the City of Newport Beach (City) letter dated September 13. 2023. and
City Council Resolution No. 2023-52 notifying the Airport Land Use Commission (ALUC)
for Orange County of the City's intent to overrule the ALUC's inconsistency determination
on the proposed Housing Element Implementation — Noise Related Amendments. In
accordance with Section 21676 of the Public Utilities Code, the ALUC submits the following
comments addressing the proposed overrule findings for the above -referenced project. These
comments shall be included in the public record of a final decision to overrule the ALUC.
Please be advised that California Public Utilities Code (PUC) Section 21678 states: "With
respect to a publicly owned airport that a public agency does not operate, if the public agency
pursuant to Section 21676, 21676.5, or 21677 overrules a commission's action or
recommendation, the operator of the airport shall be immune from liability for damages to
property or personal injury caused by or resulting directly or indirectly from the public
agency's decision to overrule the commission's action or recommendation."
Background
On August 17. 2023, the ALUC for Orange County found the proposed Housing Element
Implementation - Noise Related Amendments to be inconsistent with the Airport Environs
Land Use Plan (AELUP) for John Wayne Airport (J6kA) on a 4-0 vote. The inconsistent
finding was based on AELUP Sections 2.1.1, 2.1.2, and 2.1.4. and PUC Sections 21674(a)
and 21674(b).
Pursuant to Section 1.2 of the AELUP for JWA, the purpose of the AELUP is to safeguard the
general welfare of the inhabitants within the vicinity of the airport and to ensure the continued
operation of the airport. Specifically, the AELUP seeks to protect the public from the adverse
effects of aircraft noise to ensure that people and facilities are not concentrated in areas
DocuSign Envelope ID: OOD406E1-2E9F-4D91-A4A3-55E230ED583F
Housing Flement Implementation override Response
October 11.2023
Page 2
susceptible to aircraft accidents, and to ensure that no structures or activities adversely affect
navigable airspace. Additionally, Section 2.1.4 of the AELUP for JWA and PUC Section
21674 charge the Commission to coordinate at the local level to ensure compatible land use
planning. Therefore, because of the City's proposed amendment and potential residential
uses, that would occur within Community Noise Equivalent Levels (CNEL) 60 and 65, and
Safety Zones 4 and 6, which include exposure to significant risks, noise and aircraft
overflight, the City's proposed actions are inconsistent with the AELUP.
ALUC has the following additional comments regarding the findings and facts of support
included in Resolution No. 2023-52.
Response to Finding and Fact in Support A - Regarding Noise Standards:
Pursuant to AELUP Section 2.1.1, "... aircraft noise emanating from airports may be
incompatible with the general welfare of the inhabitants within the vicinity of an airport..."
As noted in the City's discussion, the CNEL standards are set forth in the AELUP. As part of
the review of the proposed Housing Element Implementation - Noise Related Amendments, it
was noted that the "suitable" sites are identified within the JWA 65 dBA and 60 dBA CNEL
noise contours. The ALUC believes that the proposed new locations for residential units
would be highly affected by airport noise due to the close proximity to the airport (some
within less than one mile from the runway end and others directly across the street from the
airport), and that the past and current land use designation of Open Space and/or Commercial
is the appropriate designation for this site.
One of the proposed amendments to the Noise Element is to replace the existing noise
contours which are currently consistent with the adopted AELUP for JWA, with more narrow
noise contours which were included in 2014 Settlement Agreement EIR 617. Although a
CEQA finding is not required for purposes of making a consistency determination, EIR 617
did not provide an analysis of the potentially significant impacts of placing future residential
uses within the 65 dB CNEL contour, therefore, the City's reliance on FEIR 617 is misplaced
and inconsistent with the AELUP far JWA.
The proposed Housing Element Implementation - Noise Related Amendments would allow
residential uses which are not suitable and would subject the future residents to excessive
noise regardless of which noise contours are utilized. The ALUC has historically found
residential uses in the vicinity of JWA to be inconsistent with the AEL UP,for JWA.
Response to Fact in Support B - Regarding Safety:
Pursuant to AELUP Section 2.1.2, "[s]afety and compatibility zones depict which land uses
are acceptable and which are unacceptable in various portions of airport environs. The
purpose of these zones is to support the continued use and operation of an airport by
establishing compatibility and safety standards to promote air navigational safety and to
reduce potential safety hazards for persons living, working or recreating near JWA."
DocuSign Envelope ID: OOD406E1-2E9F-4D91-A4A3-55E230ED583F
Housing Element Implementation Overrule Response
October 11, 2023
Page 3
The proposed housing sites in the Housing Element Update and subject to the Noise Related
Amendments include property located in Safety Zone 4 — Outer Approach/Departure Zone,
and Safety Zone 6 — Traffic Pattern Zone 6. Many of the sites located in Safety Zones 4 and 6
are also located in the 65 dB CNEL contour, According to the California Airport Land Use
Planning Handbook, noise and overflight should be considered in Safety Zone 6 and
residential uses should be limited to low density in Safety Zone 4. Flight tracks for the
property were included in the ALUC staff report and are attached to this letter. There are few
residential uses surrounding the proposed suitable sites, none as dense as the City's proposed
sites. Considering the proposed densities, proximity to JWA and the number of flights over
the property, the inclusion of these new dense sites in the proposed Housing Element
Implementation - Noise Related Amendments is inappropriate.
Response to Fact in Support C - Regarding_ "Intent of the AELUP":
By virtue of being clearly stated in AELUP for JWA Sections 1.2 "Purpose and Scope" and
2.0 "Planning Guidelines," the ALUC understands the complex legal charge to protect public
airports from encroachment by incompatible land use development, while simultaneously
protecting the health, safety and welfare of citizens who work and live in the airport's
environs. To this end, and as also statutorily required, ALUC proceedings are benefited by
several members having expertise in aviation. Based upon careful consideration of all
information provided, and input from ALUC members with expertise in aviation, the ALUC
unanimously found the proposed Housing Element Implementation - Noise Related
Amendments to be Inconsistent with the AELUP for JWA.
We urge the City Council to take ALUC's concerns into consideration in its deliberations
prior to deciding whether to overrule ALUC. In the event the City overrules ALUC's
determinations, ALUC requests that individual projects within the airport influence area are
submitted to ALUC for review. Thank you for the opportunity to provide these comments.
Sincerely,
CDocuSigned by:
al arc �w
OD F 3 FFB2438...
Mar onin
Vice Chairman
Attachment: John Wayne Airport Flight Tracks for Housing Element Implementation - Noise
Related Amendments
cc: Members of Airport Land Use Commission for Orange County
Members of Newport Beach City Council
Jonathan Huff, Caltrans/Division of Aeronautics
EXHIBIT "D"
Comment Letter from State Department of Transportation
Aeronautics Program dated October 13, 2023
STATE OF CALIFORNIA—CALIFORNIA STATE TRANSPORTATION AGENCY Gavin Newsom, Governor
DEPARTMENT OF TRANSPORTATION
AERONAUTICS Program- M.S. #40
1120 N STREET
P. O. BOX 942874
SACRAMENTO, CA 94274-0001
PHONE (916) 654-4959
FAX (916) 653-9531
TTY 711
www.dot.ca.gov
October 13, 2023
A
Making Conservation
a California Way of Life.
Ben Zdeba, AICP, Principal Planner Electronically Sent
City of Newport Beach bzdeba@newportbeachca.gov
Community Development Department
100 Civic Center Drive
Newport Beach, CA 92660-3267
Dear Mr. Zdeba:
The Aeronautics Program (Program) at the California Department of Transportation (Caltrans)
appreciates receiving the Notice of Intent dated September 13, 2023, from the City of
Newport Beach (City), to overrule a determination of the Orange County Airport Land Use
Commission (ALUC). The ALUC has reported that the Sixth Cycle Housing Element Update
Project (Project) is inconsistent with the Airport Environs Land Use Plan (AELUP) for the John
Wayne Airport (JWA). The Notice of Intent concerns the City's Resolution (No.) 2023-52
(Resolution), and specific "Facts in Support" related to the AELUP. In advance of a public
hearing on the Resolution to consider overruling the ALUC's determination, the Program is
providing the following comments pursuant to California Public Utilities Code (PUC) section
21676.
Please accept this updated response initially dated November 24, 2021.
Facts in Support # 1 - The Project is consistent with the noise standards of the AELUP.
Citing AELUP section 3.2.3 for "residential uses to be developed with advanced insulation
systems to bring the sound after attenuation to no more than 45 dB inside" overlooks a key
provision of the section that is seen prior to quoting the conclusion of the section that says,
"residential uses within the 65- 70 dBA CNEL noise contour are required to be 'indoor -
oriented' to preclude noise impingement on outdoor living areas." The provision in between
says, "All residential units are inconsistent in this area unless it can be shown conclusively that
such units are sufficiently sound attenuated for present and projected noise exposures, which
shall be the energy sum of all noise impacting the project, so as not to exceed an interior
standard of 45 dB CNEL."
No "conclusive" support is provided as part of Facts in Support # I - Instead, the statement is
made that the City's existing "General Plan Land Use Element Policy LU 6.15.3 and Noise
Element Policy N 3.2 currently require that residential development in the Airport Area are to
be located outside of the 65 dBA CNEL noise contour." A claim that follows says, "as part of
the City's comprehensive update to the General Plan, these policies will be updated to
reflect and allow the additional housing opportunity sites in the higher impact noise zones."
The City's proposed overrule of the ALUC, then, is based on a claim yet to be proven,
whereas the ALUC's determination of inconsistency is related to existing fact. The Program
can only conclude that the Project does not satisfy requirements in PUC section 21670, as
"Provide a safe, sustainable, integrated, and efficient transportation system
to enhance California's economy and livability"
Mr. Ben Zdeba
October 13, 2023
Page 2
claimed in the Notice of Intent for the purpose of public protection from hazards near
airports.
Facts in Support #2 -The proposed Project is consistent with the safety standards of the AELUP.
This Fact in Support is deficient for not adequately citing the reference to Safety Zone 6
(Traffic Pattern Zone) of the AELUP. As used in the Notice of Intent, the statement that says,
"risk factors associated with Safety Zone 6 generally include a low likelihood of accident
occurrence," is drawn from the AELUP, but it overlooks the AELUP's reference to the 2002
California Airport Land Use Planning Handbook (Handbook; published by the Program). It is
Table 9B in the 2002 Handbook that refers to "a low likelihood of accident occurrence."
Unfortunately, the AELUP does not account for the current Handbook of 2011. The City also
does not account for it.
The 2011 Handbook allows for low risk of accidents in the zone for an airport traffic pattern,
but it goes further to quantify accident risk (Chapter 4, page 4-25). Owing to a relatively
large area, the Handbook indicates 18-29 percent of accidents near a runway could occur in
the traffic pattern zone (attributable also to lower and slower flight profiles for less time and
altitude to recover from distress). The 2011 Handbook also allows for residential land use in
the traffic pattern zone, but with the condition that says, "where ambient noise levels are
low."
By accounting for this discrepancy, the Program recommends that the City evaluate ambient
noise levels in the JWA Safety Zone 6 before taking further action on the proposed ALUC
overrule. It would be a prudent means for abiding by PUC section 21670 "to prevent new
noise and safety problems."
Facts in Support #3 - The proposed Project is consistent with the purpose and intent of the
AELUP and will not result in incompatible land uses adjacent to JWA.
Citing the City's intention related to the Project that says, "any development on the proposed
housing opportunity sites will comply with the noise criteria and safety standards," contained
in Sections 2 and 3 of the AELUP, is appreciated by the Program. Sections 2 and 3 of AELUP
provide overall policies for planning and land use around JWA, including certain specific
criteria. The points made in this letter concerning specific criteria should be considered for
their value to ensure accurate compliance with PUC section 21670. Otherwise, the Program
contends that any less effort compromises both the City's declared position in the Notice of
Intent and the public's welfare.
Sincerely,
Originally signed by
Jonathan Huff
Associate Transportation Planner
c: Lea U. Choum, Executive Officer, Orange County Airport Land Use Commission; ALUCinfo@ocair.com
"Provide a safe, sustainable, integrated, and efficient transportation system
to enhance California's economy and livability"
Mr. Ben Zdeba
October 13, 2023
Page 2
bc: Lan Zhou, Deputy District Director, District 12, lan.zhou@dot.ca.gov
"Provide a safe, sustainable, integrated, and efficient transportation system
to enhance California's economy and livability"
EXHIBIT "E"
CEQA Consistency Findings
The California Environmental Quality Act ("CEQA") (California Public Resources Code
§§21000 et seq.); the State CEQA Guidelines (Title 14, California Code of Regulations
§§15000 et seq.); and the rules, regulations, and procedures for implementing CEQA as set
forth by the City of Newport Beach ("City") provide guidance regarding when additional
environmental review is required. Pursuant to the provisions of CEQA and the State CEQA
Guidelines, Newport Beach is the Lead Agency charged with the responsibility of deciding
whether to approve the Amendments to Newport Beach General Plan Land Use and Noise
Elements, Title 20 (Planning and Zoning) of the Newport Beach Municipal Code ("NBMC"),
Newport Place Planned Community (PC-11), and Newport Airport Village Planned
Community (PC-60) (Amendments) to accommodate housing units identified by the certified
2021-2029 Sixth Cycle General Plan Housing Element ("6th Cycle Housing Element").
The provisions of State CEQA Guidelines Section 15183 are applicable to the Amendments.
The Amendments are not subject to further environmental review pursuant to CEQA
Guidelines Section 15183 because the Amendments do not change the underlying land use
or zoning designations of any specific parcels, including parcels within the Airport Area or
within the updated noise contours; and would not result in new significant impacts or a
substantial more adverse impact than addressed in John Wayne Airport Settlement
Agreement Amendment Environmental Impact Report No. 617 (State Clearinghouse No.
2001111135) (EIR No. 617). The Amendments are also exempt because they fall within the
scope of analysis contained within the previously certified EIR No. 617, prepared for the
2014 John Wayne Airport Settlement Agreement, to which the City is a party.
CEQA Guidelines Section 15183 provides, in relevant part:
(a) CEQA mandates that projects which are consistent with the development density
established by existing zoning, community plan, or general plan policies for which
an EIR was certified shall not require additional environmental review, except as
might be necessary to examine whether there are project -specific significant effects
which are peculiar to the project or its site. This streamlines the review of such
projects and reduces the need to prepare repetitive environmental studies.
(b) In approving a project meeting the requirements of this section, a public agency
shall limit its examination of environmental effects to those which the agency
determines, in an initial study or other analysis:
(1) Are peculiar to the project or the parcel on which the project would be located,
(2) Were not analyzed as significant effects in a prior EIR on the zoning action,
general plan, or community plan, with which the project is consistent,
(3) Are potentially significant off -site impacts and cumulative impacts which were
not discussed in the prior EIR prepared for the general plan, community plan or
zoning action, or
(4) Are previously identified significant effects which, as a result of substantial new
information which was not known at the time the EIR was certified, are
determined to have a more severe adverse impact than discussed in the prior
EIR.
(c) If an impact is not peculiar to the parcel or to the project, has been addressed as a
significant effect in the prior EIR, or can be substantially mitigated by the imposition
of uniformly applied development policies or standards, as contemplated by
subdivision (e) below, then an additional EIR need not be prepared for the project
solely on the basis of that impact.
(d) This section shall apply only to projects which meet the following conditions:
(1) The project is consistent with:
(A) A community plan adopted as part of a general plan,
(B) A zoning action which zoned or designated the parcel on which the
project would be located to accommodate a particular density of
development, or
(C) A general plan of a local agency, and
(2) An EIR was certified by the lead agency for the zoning action, the community
plan, or the general plan.
As part of its decision -making process, the City is required to review and consider whether
the Amendments would create new significant impacts or significant impacts that would be
substantially more severe than those disclosed in the John Wayne Airport Settlement
Agreement Amendment Environmental Impact Report No. 617 (State Clearinghouse No.
2001111135) (EIR No. 617). Additional CEQA review is only triggered if the Amendments
create new significant impacts or impacts that are more severe than those disclosed in EIR
No. 617 such that major revisions to the EIR would be required.
The Amendments provide for updated noise contours as established in EIR No. 617 and
revisions to General Plan policies, Title 20 of NBMC, Newport Place Planned Community
(PC-11), and Newport Airport Village Planned Community (PC-60) to allow for consistency
between the certified 6th Cycle Housing Element and the Newport Beach General Plan and
NBMC as it applies to future housing uses near John Wayne Airport. The Amendments are
proposed to ensure consistency pursuant to the State Planning and Zoning Law and the
City's compliance with its RHNA allocation.
As explained below, none of the Amendments revise the land use designation, density or
development standards applicable to residential or non-residential development in the
Airport Area. The Amendments do not grant any development entitlements or authorize
development. Rather, the purpose of the Housing Element Noise Update is to advance
the policies and goals of the 6th Cycle Housing Element by removing the barrier in
multiple General Plan and zoning policies that prohibit residential development within the
1985 65 dBA CNEL. The Amendments, therefore, will not result in development of
greater intensity than is allowed under the 2006 General Plan and Newport Airport
Village Planned Community, as amended.
Although the City's 2006 General Plan approved a maximum of 2,200 residential units in
the Airport Area at a maximum density of 50 dwelling units per net acre (du/net acre), the
General Plan Program EIR evaluated 4,300 residential units in the Airport Area. California
courts have upheld reliance on this exemption for programmatic planning decisions. See,
e.g., Lucas v. City of Pomona, 92 Cal.App.5th 508 (2023) (city properly relied on CEQA
Guidelines section 15183 when approving a zoning overlay district allowing commercial
cannabis activities on specific parcels located in certain areas within the City; court noting
that "the Project merely imposes an overlay use on existing zoning; it does not guarantee
anyone the automatic right to establish a cannabis -related business, but rather, provides
the option to apply for a cannabis business permit. In that sense, the Amendments does
not cause project -specific effects 'peculiar' to it.") Because no additional CEQA review is
required, the City is not required to analyze additional mitigation measures for the
Housing Element Noise Update at this time. Furthermore, as noted above, the Housing
Element Noise Update requires (as a local regulatory requirement, not CEQA mitigation
measure) residential projects located within the 65 dBA CNEL contour line to include
appropriate in -door sound attenuation methods.
The Noise Chapter of EIR No. 617 explained how the dBA CNEL noise contours have
reduced in size compared to the 1985 Airport Environs Land Use Plan ("AELUP") Master
Plan CNEL noise contours, in which the City's General Plan policies and maps are based
on. The 1985 Master Plan noise contours are considerably larger than the existing noise
contours presented previously. This is largely due to a quieter fleet of existing commercial
aircraft and a dramatic reduction in the number of generation aviation operations. The noise
contours in EIR No. 617 are based on more contemporary noise modeling programs, as the
EIR explained that "one of the most important factors in generating accurate noise contours
is the collection of accurate operational data". Airport noise contours generated in this noise
study using the INM Version 7.Od which was released for use in May 2013, and is the state -
of -art in airport noise modeling.
As such, the City proposes to update the Noise Element to include these noise contours,
which in part, modify where residential uses could occur outside of the 65 CNEL contour in
the Airport Area. Based on these updated noise contours, certain Housing Opportunity Sites
will now be outside of the 65 CNEL contour while others will be within the 65 CNEL contour.
However, the Amendments will not result in development of greater intensity than is allowed
under the 2006 General Plan and Newport Airport Village Planned Community, as
amended. Residential uses can be allowed in the Airport Area on parcels that are wholly or
partially outside the 65dBA CNEL contour as denoted in Figure N5 of the Noise Element.
The JWA noise contours depicted in Figure N5 as proposed are the noise contours from
EIR No. 617. Residential uses may be approved in these areas provided interior living areas
are protected from excessive noise by appropriate construction techniques that reduce the
interior noise to 45 dBA CNEL, consistent with state law. Parcels that are wholly within the
65 dB CNEL contour shown in Figure N5 (e.g., those identified as experiencing noise levels
above 65 dB CNEL) are unsuitable for residential development unless and until the City
determines, based on substantial evidence, that the site(s) wholly within the 65-70 dB CNEL
contours are needed for the City to satisfy its 6th Cycle RHNA mandate. The changes would
not allow for more development than assumed in the growth assumptions in the General
Plan nor would it impact the City's RHNA obligations.
To the extent new parcels are able to be developed in the future for residential uses, by
nature of no longer being located within areas identified as experiencing 65 dB CNEL or
greater, those parcels must be part of a specific proposed project for consideration and
processing by the City for approval. Future housing development would be subject to
compliance with the established regulatory framework, namely federal, State, regional, and
local (including General Plan policies, NBMC standards, and Standard Conditions of
Approval). While by -right housing projects may be exempt from CEQA, all future residential
uses affected by the Amendments would continue to be subject to further development
review, which can include technical supporting reports.
The Amendments are also exempt because they fall within the scope of analysis
contained within EIR No. 617, prepared and certified by the County for the 2014 John
Wayne Airport Settlement Agreement Amendment, to which the City is a party. EIR No.
617, fully analyzed impacts on sensitive receptors (including residential uses) in
adopting the Settlement Agreement Amendment, including the updated CNEL
contour boundaries associated therewith, using both the County and City's thresholds
of significance. The City was a responsible agency for EIR No. 617, and co -signatory to
the Settlement Agreement Amendment. EIR No. 617 concluded that the Settlement
Agreement Amendment (and associated updated CNEL contours) would result in less -
than -significant impacts related to noise increases at sensitive receptors, but a
significant and unavoidable impact from increasing noise levels at exterior use areas
of residences. A Statement of Overriding Considerations was adopted. No lawsuits
were filed challenging the adequacy of EIR No. 617.
EIR No. 617 fully analyzed impacts on sensitive receptors (including residential uses) in
adopting the Settlement Agreement Amendment, including the updated CNEL contour
boundaries associated therewith. In April 2014, the County of Orange prepared a EIR in
connection with the Airport Settlement Amendment (SHC No. 2001111135). The County
Board of Supervisors certified the EIR on September 30, 2014. The County's approval of
the Project would be contingent upon the City Council of Newport Beach and the
governing boards of Stop Polluting Our Newport ("SPON") and Airport Working Group
("AWG") approving and executing the agreed upon amendment to the Settlement
Agreement. The City was a responsible agency and the City Council relied on EIR No.
617 for CEQA purposes in approving the Settlement Agreement Amendment. A
Statement of Overriding Considerations was adopted. No lawsuits were filed challenging
EIR No. 617.
EIR No. 617 analyzed potentially significant environmental effects of residential land uses
in the 65 dB CNEL. Specifically, the noise and land use and planning chapters of EIR No.
617 quantified and analyzed noise and land use incompatibility impacts associated with
existing residential uses (and noise receptors) in the 65 dBA CNEL. The cumulative
impacts analyses in the 65 dB CNEL expressly reflected future planning trends, growth
projections and specific projects located in the Airport Area in proximity to JWA.
Nnica
EIR No. 617 provides an explanation as to why the 2014 dBA CNEL contours are smaller
than the 1985 Master Plan CNEL contours. The EIR observed that "the Mater Plan noise
contours are considerably larger than existing noise contours ... due to a quieter fleet of
existing commercial aircraft and a dramatic reduction in the number of generation aviation
operations ...."7 The 2014 CNEL contours were also based on a newly adopted, "state-
of-the-art" noise modeling program.$ Overall, the EIR found that the 65 dBA CNEL
contour area was 114% smaller than the analog from the 1985 Master Plan.
• 60 and 65 CNEL contour: Master Plan contours are 114 percent larger than the Existing
Condition contours. As allowed by the Master Plan, the area outside the Airport
boundaries that would be exposed to noise levels in the 60 to 65 dB CNEL range is
125 percent larger than the currently exposed area.
• 65 and 70 CNEL contour: Master Plan contours are almost 50 percent larger than the
Existing Condition contours. As allowed by the Master Plan, the area outside the Airport
boundaries that would be exposed to the 65 to 70 dB CNEL noise levels is 80 percent
larger than the currently exposed area.
• 70+ CNEL contour: Master Plan contours are 80 percent larger than the Existing
Condition contours. As allowed by the Master Plan, the area outside the Airport
boundaries that would be exposed to noise levels that exceed 70 dB CNEL is
311 percent larger than the currently exposed area.
EIR No. 617 then quantified the number of sensitive receptors (including residential uses)
within the updated 65 dba CNEL contour area, compared those to those covered under
the now -outdated 1985 CNEL contours. In doing so, the EIR noted that the area
surrounding the Airport is generally urban in character. Surrounding uses include
industrial, commercial, and residential uses. The residential area is predominately south
and southwest of the Airport. (Id. at 2-12). Specifically, EIR No. 617's Noise Technical
Report, prepared by Landrum and Brown,9 quantified the number of sensitive receptors
(including residential units) that would be impacted by the Project and its utilization of the
7 2014 EIR at 4.6-34.
8 Id. at 4.6-31. Airport noise contours were generated using the INM Version 7.0d. The latest version, INM
Version 7.0d, was released for use in May 2013 and is the state-of-the-art in airport noise modeling.
9https://www.newportbeaclica.gov/lpiii/CEQA REVIEW/John) 20Wnyne%20Airport%20DEIR/CC%205A%20Appendices%20to%20
FE I R%20617/Appendix%20C%20-%20Noise%20Analvsis%20Technical%20Report.pdf
updated CNEL contours.10 Table 22 of the Noise Technical Report compared the number
of residential units within both the 1985 and 2014 65 dBA CNEL contours:
• 70 CNEL contour: 379 acres/0.59 square mile, including 1 place of worship (the Orange
Coast Free Methodist Church), but no other noise -sensitive land uses.
• 65 to 70 CNEL contour: 561 acres/0.88 square mile, including 96 residences (of which
49 are sound insulated) and 2 places of worship (Islamic Educational Center of Orange
County and Berean Community Church), but no other noise -sensitive land uses.
• 60 to 65 CNEL contour: 1,313 acres/2.05 square miles, including 932 residences (of
which 348 are sound insulated), 5 places of worship, and 4 schools, as listed below:
Using the City's thresholds of significance, EIR No. 617 ultimately concluded that the
Project would not result in noise increases at sensitive receptors where existing exposure
is 65 CNEL or above, between 60 and 65 CNEL, or 45 and 60 CNEL. However, the EIR
determined that the Project would generate aircraft noise that would increase noise levels
at exterior use areas of residences or schools to noise levels of 65 CNEL or above or
interior areas of residences or schools to noise levels of 45 CNEL. Specifically, the Project
would have a significant exterior noise impact on 31 residences in Phase 1, 62 residences
in Phase 2, and 77 residences in Phase 3. The Proposed Project would have a potentially
significant interior noise impact on 21 residences in Phase 1, 39 residences in Phase 2,
and 43 residences and one place of worship in Phase 3. A Statement of Overriding
Considerations was adopted to cover this significant and unavoidable impact, which was
not subject to legal challenge (nor was EIR No. 617).
Land Use and Plann
EIR No. 617's land use and planning chapter acknowledged that JWA is located in an
urbanized area. The surrounding land uses for areas in the City that are adjacent to JWA
included the same land uses that exist today, including but not limited to, AO (Office
Airport), CO-G (General Commercial Office), CG General Commercial, MU-H2 (Mixed
Use Horizontal). (EIR at 4.5-17). As noted above, the Noise Analysis Technical Report
analyzed land uses within the 2014 CNEL contours, to determine "the amount of area
and sensitive receptors" in such contours. (See directly above.) EIR No. 617 observed
that, "as the 65 CNEL contour expands beyond the existing contour and includes
additional residences this would be a significant impact." (EIR at 4.5-32). The EIR
ultimately concluded that, with all phases of the Proposed Project, there would be a
significant, unavoidable land use and land use impact due to an increase in the number
of noise -sensitive uses exposed to noise levels in excess of the 65 CNEL exterior noise
standard. There are no feasible mitigation measures for exterior noise levels.
Implementation of Mitigation Measure LU-1 would potentially reduce impacts associated
with excess interior noise levels to less than significant levels. However, until interior noise
measurements are taken, it cannot be determined if all the noise sensitive uses with
interior noise levels in excess of 45 CNEL would qualify for sound attenuation based on
FAA criteria. Given the uncertainty that this measure is feasible to adequately reduce
interior noise levels at all potentially impacted residences, the impact was determined to
10 See, e.g., 2014 EIR Table 4.6-18 (at p. 4.6-69);
be significant and unavoidable. A Statement of Overriding Considerations was adopted
to cover this significant and unavoidable impact, which was not subject to legal challenge
(nor was EIR No. 617).
Cumulative Impacts
Chapter 5.0 (Cumulative Impacts) of EIR No. 617 considered existing and future
residential uses when analyzing impacts of the Settlement Agreement Amendment and
2014 CNEL lines. For example, the cumulative impacts analysis considered countywide
growth and development forecasts based on input from the County of Orange and the
cities located in the County. These projections reflect adopted land uses and future
growth scenarios based on local land use policies. (EIR at 5-3). The EIR explained:
"The OCP-2010 Modified projections provide forecasts to the year 2035 and take
into account the projected growth Orange County in its entirety. OCP-2010
Modified projections are particularly useful in evaluating the cumulative impacts
associated with traffic, air quality, greenhouse gas ("GHG") emissions, and noise
because they provide growth assumptions consistent with the local general plans
that have been developed with a long-range horizon year. This allows the
cumulative analysis to go beyond just a listing of projects, which would not
adequately reflect conditions at Project buildout." (Id.)
Further, Section 5.2.2 of the EIR contains a list of reasonably foreseeable probable future
projects, some of which are located in the Airport Area of the City. See, e.g., Table 5-2
(including, among others, Koll Mixed Use Development, MacArthur at Dolphin -Striker
Way, Newport Business Uptown Newport Mixed Use Development, and the previously
considered Land Use Element Update). The cumulative impacts analysis expressly found
that "[w]hen compared to existing conditions, the a Project and all the alternatives would
extend the 65 CNEL contour into areas designed for mixed -use development in the City
of Newport Beach's Airport Area. The City of Newport Beach General Plan's Noise
Element noise/land use compatibility matrix (see Table N2 in the Noise Element, page
12-23) lists mixed use land uses within the 65 CNEL contour as "normally
incompatible; "...If new construction or development does proceed, a detailed analysis of
noise reduction requirements must be made and noise insulation features must be
included in the design." (EIR at 5-37). "Though design plans for the development projects
identified as part of the Newport Beach LUE have not been prepared, it is reasonable to
assume that the City of Newport Beach would evaluate each of the cumulative projects
for policy consistency through the entitlement process. Therefore, the Project would not
contribute to any cumulative impacts associated with plan or policy inconsistency." (EIR
at 5-39).
No new information that was not known at the time the General Plan and EIR No. 617 were
prepared is now available that demonstrates that the Amendments will result in a new or
increased significant impact. The Amendments would not cause growth beyond that
accommodated by the General Plan. The Amendments do not introduce new land use
designations or otherwise alter general land use patterns or development standards.
Therefore, the findings of previously certified EIR No. 617 are applicable to the
Amendments. Implementation of the Amendments would not substantially increase the
severity of previously identified impacts, including but not limited to air emissions and
greenhouse gas emissions. Although the noise contours would be updated, the
requirements for compliance with noise standards would not change.
Finally, overriding ALUC and adoption of the Amendments does not constitute
piecemealing. Additional environmental review for the Housing Element Noise Update
is not needed for two independent reasons: (i) the update is exempt under CEQA
Guidelines section 15183, and (ii) it is fully within the scope of the 2014 Settlement
Agreement Amendment No. 617 and the 2014 CNEL contours analyzed therein. For
this first determination, a lead agency's finding that a particular proposed project comes
within one of the exempt classes necessarily includes an implied finding that the project
has no significant effect on the environment." (Davidon Homes v. City of San Jose
(1997) 54 Cal.AppAth 106.) If an exemption applies, the project is excused from
CEQA's environmental review, which occurs only if an agency determines the project is
not exempt from CEQA. (Union of Medical Marijuana Patients, Inc. v. City of San Diego
(2019) 7 Cal.5th 1171, 1186, ["Environmental review is required under CEQA only if a
public agency concludes that a proposed activity is a project and does not qualify for an
exemption."].)
California courts have held that improper piecemealing does not occur when "projects
have different proponents, serve different purposes, or can be implemented
independently." Different projects may properly undergo separate environmental review
(i.e., no piecemealing) when the projects can be implemented independently. A project
may also be reviewed without reference to potential future projects when it has "significant
independent or local utility" and would be implemented with or without approval of the
future project, even if the two are related in some other respects. See, e.g., Aptos Council
v. Cnty. of Santa Cruz, 10 Cal.App.5th 266, 282 (2017). Here, the Housing Element Noise
Update functions independently and does not rely on any future planning decisions or
project -level approvals. The Housing Element Noise Update involves removing an
inherent barrier based on General Plan policies and zoning regulations that prohibit
residential development within the 1985 65 dBA CNEL. The Housing Element Noise
Update is a necessary, isolated planning action to allow the City to implement the Housing
Element.
C'nnrh minn
Thus, because EIR No. 617 analyzed impacts associated with the updated CNEL noise
contours, the City's adoption of the updated CNEL noise contours within its own internal
policies is fully within the scope of EIR No. 617, and the 2006 General Plan, as amended.
The Amendments would not result in any new significant environmental effects that are
substantially different from those identified in EIR No. 617 nor would it substantially increase
the severity of significant effects previously identified in EIR No. 617. Therefore, based on
the provisions of State CEQA Guidelines Section 15183, no additional CEQA
documentation is required.
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the
whole number of members of the City Council is seven; the foregoing resolution, being Resolution
No. 2023-73 was duly introduced before and adopted by the City Council of said City at a regular meeting
of said Council held on the 14th day of November, 2023; and the same was so passed and adopted by the
following vote, to wit:
AYES: Mayor Noah Blom, Mayor Pro Tern Will O'Neill, Councilmember Brad Avery,
Councilmember Robyn Grant, Councilmember Lauren Kleiman, Councilmember
Joe Stapleton
NAYS: None
RECUSED: Councilmember Erik Weigand
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of
said City this 15th day of November, 2023.
Leilani I. Brown
City Clerk
Newport Beach, California